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Full text of "Negotiated Rulemaking Sourcebook"

Administrative Conference 
of the United States 



NEGOTIATED 
RULEMAKING > 
SOURCEBOOK 



Office of 
the Chairman 
1995 



Administrative Conference of the United States 



The Administrative Conference of the United States was 
established by statute as an independent agency of the federal 
government in 1964. Its purpose is to promote improvements in 
the efficiency, adequacy and fairness of procedures by which 
federal agencies conduct regulatory programs, administer grants 
and benefits, and perform related governmental functions. 

To this end, the Conference conducts research and issues 
reports concerning various aspects of the administrative process 
and, when warranted, makes recommendations to the President, 
Congress, particular departments and agencies, and the judiciary 
concerning the need for procedural reforms. Implementation of 
Conference recommendations may be accomplished through 
direct action on the part of the affected agencies or legislative 
changes. 



NEGOTIATED 
RULEMAKING 
SOURCEBOOK 



David M. Pritzker 
Administrative Conference of the United States 

and 

Deborah S. Dalton 
Environmental Protection Agency 



OFFICE OF THE CHAIRMAN 

ADMINISTRATIVE CONFERENCE OF THE UNITED 

STATES 



SEPTEMBER 1995 



For sale by the U.S. Government Printing Office 
Superintendent of Oocuments, Mail Stop: SSOP, Washington, DC 20402-9328 
ISBN 0-16-048222-A 



Digitized by tine Internet Archive 

in 2010 with funding from 

Public.Resource.org and Law.Gov 



http://www.archive.org/details/negotiatedrule1995unse 



TABLE OF CONTENTS 

Foreword xiii 

Introduction xv 

Acknowledgments xvii 

1. What is Negotiated Rulemaking? 1 

Why Use Negotiated Rulemaking; Benefits 
of Negotiated Rulemaking; Some Drawbacks; 
Criteria for Negotiated Rulemaking; 
Procedures; Federal Agency Experience 

Appendix: 

Procedures for Negotiating Proposed 

Regulations, Administrative Conference 
Recommendation 82-4 11 

Procedures for Negotiating Proposed 

Regulations, Administrative Conference 
Recommendation 85-5 15 

EPA Flow Chart for Negotiated Rulemaking 18 

Lee M. Thomas, The Successful Use of 
Regulatory Negotiation by EPA, 13 
Admin. L. News 1 (Fall 1987) 20 

Assessment of EPA's Negotiated Rulemaking 

Activities 23 



2. When to Use Negotiated Rulemaking 37 

Evaluating a Rule's Suitability for 
Negotiated Rulemaking; How Is Negotiated 
Rulemaking Proposed? 



HI 



Appendix: 

Selection Criteria (EPA) 42 

Notice of EPA Regulatory Negotiation Project 43 

Letter from John McGlennon 45 

Discussion on the Use of Consultation and 

Consensus-Building Processes 48 

3. Statutory Basis for Negotiated Rulemaking 67 

Administrative Procedure Act; Federal 
Advisory Committee Act; Other Requirements 

Appendix: 

Negotiated Rulemaking Act of 1990 76 

Federal Administrative Procedure Sourcebook, 

Chapter 14, Negotiated Rulemaking Act 84 

Statement of Senator Carl Levin (August 10, 

1988) 91 

Administrative Procedure Act §553 97 

Ex Parte Communications in Informal 

Rulemaking, Administrative Conference 
Recommendation 77-3 98 

Federal Advisory Committee Act 100 

Federal Advisory Committee Management Final 

Rule(GSA) 107 



IV 



4. The Convening Process 123 

Selecting a Convenor; Steps in the Convening 
Process; Decision to Proceed; Final Convening 
Phase; Federal Advisory Committee Act 

Appendix: 

Cover Letter for FAC A Charter (EPA) 132 

Wood-Burning Stoves FAC A Charter (EPA) 134 

Oil Spill Vessel Response Plans FACA Charter 

(Coast Guard) 136 

EPA Memorandum on Wood-Burning Stoves 138 

Notice of Intent to Form Advisory Committee 

on Wood-Burning Stoves (EPA) 141 

Notice of Establishment and Meeting of Wood- 
Burning Stoves Advisory Committee 
(EPA) 146 

Notice of Intent to Form Advisory Committee 
on Roadway Worker Protection 
(Federal Railroad Administration) 147 

Notice of Establishment and Meeting of 
Advisory Committee on Roadway 
Worker Protection (FRA) 154 

Notice of Meeting Schedule of Advisory 
Committee on Nondiscrimination in 
Air Travel (DOT) 159 

Notice of Intent to Form Advisory 

Committee on Safety Standards for 

Steel Erection (OSHA) 160 

Notice of Establishment of Steel Erection 

Advisory Committee (OSHA) 171 



Notice of Meeting and Appointment of 
Members of Steel Erection Advisory 
Committee (OSHA) 173 

Letter to OSH A on Negotiation for Benzene 183 

Order of U.S. District Court, California 

V. Model 188 



5. Orientation and Training of Participants 193 

Objectives; Content of Training Sessions 
Appendix: 

Agenda for Training Session (DOT) 196 

Agenda for Training Session (EPA) 199 

Agenda for Training Session (FCC) 205 

6. Negotiating the Rule 207 

Design of the Negotiations; Organizational 
Meeting; Consensus; Structuring the 
Negotiating Sessions; Meeting Management; 
Deadlines; Coordination, Agency Review 
and Concurrence 

Appendix: 

Notice of Meeting of Steel Erection 

Advisory Committee (OSHA) 217 

Notices of Meetings on Wood-Burning 

Stoves (EPA) 218 

Organizational Protocols for Wood-Burning 

Stoves (EPA) 219 

Organizational Protocols for Oil Spill 

Vessel Response Plans (Coast Guard) 222 



VI 



7. Concluding the Negotiations 229 

Final Steps; Evaluation of the Rulemaking 
Effort 

Appendix: 

Notice of Results of Negotiation for Wood- 
Burning Stoves (EPA) 234 

Agreement on Wood-Burning Stoves (EPA) 240 

Notice of Proposed Rulemaking (Preamble) 

on Wood-Burning Stoves (EPA) 242 

Notice of Proposed Rulemaking (Preamble) 

on Flight Time Limitations (FAA) 250 

Notice of Meeting (After Comment Period) 

(FAA) 255 

Mediator's Summary Letter on Benzene 

Negotiations (OSHA) 256 

Cover Letter for Report on RCRA Permit 

Modification (EPA) 259 

Committee Statement on RCRA Permit 

Modification (EPA) 261 



8. Resources and Logistics 267 

Convenor and Mediator Services; Committee- 
Sponsored Research; Expenses for Training, 
Orientation and Meetings; Expenses of 
Participation; Reimbursement for Time 

Appendix: 

Table of Costs of EPA Negotiations 274 



vu 



Acquiring the Services of "Neutrals," 
Administrative Conference 
Recommendation 86-8 275 

George D. Ruttinger, Acquiring the Services 
of Neutrals for Alternative Means of 
Dispute Resolution and Negotiated 
Rulemaking (Report to the Adminis- 
trative Conference), 1986 ACUS 863 279 

Commerce Business Daily Procurement Notice 

(EPA) 324 

Commerce Business Daily Procurement Notice 

(Interior) 324 

EPA Contract for Support Services 325 

Interior Contract for Support Services 353 

9. Negotiated Rulemaking at State Level 369 

Negotiated Rulemaking; Policy Dialogues 
and Other Consensus-Building Efforts 

10. Agency Experience with Negotiated Rulemaking 375 

Department of Agriculture 375 

Department of Education 376 

Department of Energy 379 

Department of Health & Human Services 379 

Department of Housing & Urban Development 380 

Department of the Interior 380 

Department of Labor 382 



Vlll 



Department of Transportation 383 

Environmental Protection Agency 387 

Farm Credit Administration 395 

Federal Communications Commission 395 

Federal Trade Commission 396 

Interstate Commerce Commission 397 

Nuclear Regulatory Commission 397 

11. Sources of Assistance 399 

Organizations with Experience in Negotiated 
Rulemaking or Mediation of Public Policy 
Disputes 

12. Bibliography 411 

13. Selected Articles 427 

Index to Articles 427 

Comprehensive Analyses 

Philip J. Harter, Negotiating Regulations: 
A Cure for Malaise, 71 Geo. L. J. 1 
(1982) 431 

Philip J. Harter, Regulatory Negotiation: 

Experienced Practitioner Offers Guidance 

(two parts), 2 BNA ADR Report 62, 80 

(February 18 and March 3, 1988) 544 



ix 



Henry H. Perritt, Jr., Negotiated Rulemaking 
Before Federal Agencies: Evaluation of 
Recommendation by the Administrative 
Conference (excerpts), 74 Geo. L. J. 
1625(1986) 554 

Henry H. Perritt, Jr., Administrative ADR: 
Development of Negotiated Rulemaking 
and Other Processes (excerpts), 
14 Pepperdine L. Rev. 863 (1987) 603 

Henry H. Perritt, Jr., Use of Negotiated 

Rulemaking to Develop a Proposed OSHA 

Health Standard for MDA (Report to 

Deputy Assistant Secretary of Labor, 

May 1988) 661 

Lawrence Susskind & Gerard McMahon, 772^ 
Theory and Practice of Negotiated 
Rulemaking, 3 Yale J. Reg. 133 (1985) 704 

Owen Olpin et al.. Applying ADR to Rulemaking 
(Administrative Conference Colloquium 
Proceedings), 1 Admin. L. J. 575 
(1987) 737 

Patricia M. Wald, Negotiation of Environmental 
Disputes: A New Role for the Courts? 
(excerpts), 10 Colum. J. Envtl. L. 1 
(1985) 751 

Philip J. Harter, The Role of the Courts in 
Reg-Neg -- A Response to Judge Wald, 
11 Colum. J. Envtl. L. 51 (1986) 767 

William Funk, When Smoke Gets in Your Eyes: 
Reg-Neg and the Public Interest ~ EPA 's 
Woodstove Standards, 18 Envtl. L. 55 
(1987) 789 



News and Shorter Articles 

Neil Eisner, Regulatory Negotiation: A 
Real World Experience, 31 Fed. Bar 
News & J. 371 (1984) 833 

Daniel J. Fiorino & Chris Kirtz, Breaking 
Down Walls: Negotiated Rulemaking 
at EPA, 4 Temple Envtl. L. & Tech. J. 
29(1985) 839 

Daniel J. Fiorino, Regulatory Negotiation 
as a Policy Process, 48 Pub. Admin. 
Rev. 764 (1988) 849 

Regulatory Negotiation: Four Perspectives, 

DR Forum (NIDR), p. 8 (Jan. 1986) 858 

Lawrence Susskind & Laura Van Dam, Squaring 
Off at the Table, Not in the Courts, 
Tech. Rev., p. 37 (July 1986) 862 

William H. Miller, Bypassing the Lawyers, 

Industry Week, June 23, 1986, p. 20 869 

Mike McClintock, Regulating Wood Stove 
Emissions, Wash. Post, Sept. 25, 1986, 
(Wash. Home) p. 5 870 

EPA Negotiates Proposed Rule on Asbestos 
in Schools, 1 BNA ADR Report 133 
(July9, 1987) 872 

Participants and Facilitators Discuss 
Negotiation of EPA 's Proposed Rule 
on Asbestos in Schools, 1 BNA ADR 
Report 154 (July 23, 1987) 875 

Rena Steinzor & Scott Strauss, Building 
a Consensus: Agencies Stressing 
"Reg-Neg" Approach, Legal Times, 
Aug. 3, 1987, p. 16 880 



XI 



Marshall J. Breger, Letter Replying to 
Steinzor & Strauss, Legal Times, 
Aug. 10, 1987 886 

Marianne Lavelle, "Reg-Neg " Revving Up 
inD.C, Nat'l L. J., March 21, 1988, 
p. 1 887 

Despite Impasse, Parties Praise DOT's 
Non-discrimination Reg-Neg, 2 BNA 
ADR Report 117 (March 31, 1988) 890 

Education Law Calls for Test of Modified 
Reg-Neg Process, 2 BNA ADR Report 
300 (Sept. 1, 1988) 894 

Robert B. Reich, Regulation by Confrontation 
or Negotiation?, Harv. Bus. Rev., p. 82 
(May-June 1981) 896 

Kathrin Day Lassila, See You Later, Litigator, 

Amicus J. 5 (Summer 1992) 908 

Stephen B. Goldberg, Reflections on Negotiated 
Rulemaking, 9 Wash. Lawyer (no. 1) 42 
(Sept./Oct. 1994) 910 

Ellen Siegler, Regulatory Negotiations: A 
Practical Perspective, 22 Envtl. L. Rep. 
(no. 10) 10647 (1992) 917 



Xll 



CHAIRMAN'S FOREWORD 



The Administrative Conference published the Negotiated 
Rulemaking Sourcebook in 1990 as a handbook and reference 
manual intended primarily for use by federal agencies interested in 
improving their rulemaking procedures. Since that time, interest in 
negotiated rulemaking (or "reg-neg") has grown substantially. 
With bipartisan support Congress subsequently passed the 
Negotiated Rulemaking Act of 1990, which was signed into law by 
President Bush. The Clinton Administration and the National 
Performance Review have also been strong supporters of this 
innovative procedure, which is designed to increase and improve 
public participation in federal agency programs. Meanwhile, 
Congress on several occasions has required specific use of reg-neg. 
Thus the need for education, advice and assistance in the effective 
and appropriate use of the process continues to grow. With the 
encouragement and financial support of the Environmental 
Protection Agency, the Administrative Conference has now 
prepared an updated version of the Sourcebook. 

In passing the Negotiated Rulemaking Act, Congress noted that 
the ordinary rulemaking procedures used by agencies tend to 
discourage the affected parties from meeting and communicating 
with each other. Furthermore, the traditional processes often cause 
parties with different interests to assume conflicting and antagonistic 
positions and to engage in protracted and expensive litigation. It is 
precisely to respond to this situation that the Administrative 
Conference pioneered the application of negotiations and mediation 
to agency rulemaking. 

In a 1982 recommendation, the Conference suggested that by 
bringing interested parties together in a cooperative setting at the 
front end of the rulemaking process, much of the litigation that 
occurs at the conclusion of a rulemaking would be obviated. The 
concept of negotiated rulemaking gives the people who have real 
interests at stake in a particular rule the opportunity to work toward 
finding solutions to shared problems. Reg-neg has the capacity to 
reduce the likelihood of litigation, to produce faster and less costly 
rulemaking ~ and to create objectively better rules. Moreover, 
such rules are likely to be more acceptable to the parties involved. 



Xlll 



The Conference originally worked closely with officials of 
those agencies that were willing to be pioneers in this field. As 
interest in reg-neg has grown in both the legislative and executive 
branches, we have expended our program to include written 
materials, training, and technical assistance. Through ongoing 
contacts with agencies, convenors, academics, and private 
participants, we have acted as an information clearinghouse about 
how both the public and the agencies can benefit from using 
negotiations in rulemaking. The Negotiated Rulemaking 
Sourcebook is a compilation of this experience in a convenient 
package and is a key element of our assistance. 

To our knowledge, the Sourcebook is the only volume available 
devoted to the conduct of negotiated rulemaking. I hope that 
publication of the revised version will continue to stimulate 
increased interest and activity in the search for cooperative solutions 
to regulatory problems. Our ultimate goal, of course, is greater 
efficiency and fairness in the rulemaking process, and we believe 
that the expanded use of negotiated rulemaking by federal agencies 
constitutes a major step in that direction. 



Thomasina V. Rogers 
Chairman 



XIV 



INTRODUCTION 



The 1995 revision of the Negotiated Rulemaking Sourcebook 
has been prepared as a guide and reference manual for federal 
agencies and others interested in use of negotiated rulemaking. The 
Sourcebook is based on the best available research and the collected 
experience of the government agencies and other parties that were 
willing to try this innovative technique for resolving disputes 
arising in rulemaking. 

After introductory chapters that explain the procedure, when to 
use it, and the statutory basis for negotiated rulemaking, the book 
addresses sequentially the steps involved in convening, training 
participants, conducting negotiations, and concluding a "reg-neg" 
proceeding. The Negotiated Rulemaking Act of 1990 is reprinted in 
the appendix to chapter 3, and its provisions are discussed 
throughout the first eight chapters. Relevant state experience is 
summarized in chapter 9. A compendium of negotiated rulemaking 
experience of federal agencies through May 1995 appears in chapter 
10, including citations to many of the significant notices published. 
A partial list of sources of assistance follows in chapter 11. 
Chapter 12 contains an extensive bibliography. Finally, we have 
included a collection of articles that may help illuminate the issues 
and the experience to date. An index to the articles appears at the 
beginning of chapter 13. 

Most chapters in the Sourcebook consist of a text that discusses 
the subject of the chapter, followed by an appendix. These 
appendices contain relevant statutes. Federal Register notices. 
Administrative Conference recommendations, brief articles, and 
other illustrative material. In general, a reference in a particular 
chapter to a document appearing "in the appendix" (without 
referring to a chapter number) means that that document is reprinted 
in the appendix to the same chapter. 

The primary audience for the Sourcebook is intended to be 
agency officials -- those who are considering use of negotiated 
rulemaking and need to know more about it, and those who have 
decided to use the process and need a practical guide. To serve 
these needs, we have included a large number of sample documents 



XV 



of the kinds that will have to be drafted at various stages of 
conducting a reg-neg. While we have tried to include a variety of 
such material from different agencies and different proceedings, we 
have also chosen to retain from the 1990 Sourcebook virtually the 
entire collection of public notices from a single negotiated 
rulemaking ~ EPA's woodburning stove proceeding ~ so that the 
user of the Sourcebook can follow its development. Although the 
woodburning stove reg-neg preceded the Reg-Neg Act (and 
therefore contains no references to it), the notices do illustrate all of 
the steps required. Other more recent examples are also included 
for reference. 



XVI 



ACKNOWLEDGMENTS 



The Administrative Conference is grateful to the 
Environmental Protection Agency for its generous financial support 
that has made possible the publication of a revised and updated 
printing of the Sourcebook. The Conference also wishes to thank 
EPA for making available the services of co-author Deborah S. 
Dalton, and to express appreciation to Thomas E. Kelly, Director, 
Office of Regulatory Management and Evaluation, for his support 
of this project. 

Many individuals contributed to the Negotiated Rulemaking 
Sourcebook in a variety of ways. On the Administrative Conference 
staff, special thanks are due to Deborah Laufer and Katie Zeigler 
for bibliographic and general research assistance. Oskian 
Kouzouian helped with the details of publication of the volume. 
Diane Liff, Kimberly D'Souza, Sharon Anderson and Gloria Coffey 
each helped out at a moment of special need. Valuable comments 
on the revised draft and organization of the Sourcebook were 
received from Charles Pou, Jr. 

We acknowledge also the cooperation of the numerous private 
publishers who granted permission to reprint copyrighted material 
in the Sourcebook. 

David M. Pritzker 
Project Director 



XVII 



CHAPTER 1 - WHAT IS NEGOTIATED 
RULEMAKING? 



Negotiated rulemaking (sometimes known as "regulatory 
negotiation" or "reg-neg") emerged in the 1980's as an alternative 
to traditional procedures for drafting proposed regulations. With 
the passage of the Negotiated Rulemaking Act of 1990, the 
recommendations of the National Performance Review in 1993, and 
various directives by President Clinton, negotiated rulemaking 
enjoys increasing and widespread bipartisan support as a means of 
achieving better regulation through the cooperative efforts of 
government agencies and the private sector. 

The essence of the idea is that in certain situations it is possible 
to bring together representatives of the agency and the various 
interest groups to negotiate the text of a proposed rule. The 
negotiators try to reach a consensus through a process of evaluating 
their own priorities and making tradeoffs to achieve an acceptable 
outcome on the issues of greatest importance to them. If they do 
achieve a consensus, then the resulting rule is likely to be easier to 
implement and the likelihood of subsequent litigation is diminished. 

The Administrative Procedure Act does not require public 
participation in the drafting stage of agency rulemaking. It requires 
only that the agency publish any proposed rule and allow an 
opportunity for comment. (See chapter 3 for a discussion of the 
Administrative Procedure Act and negotiated rulemaking.) Under 
the ordinary rulemaking procedure, an agency may or may not have 
contacts with persons whose activities are regulated -- or with the 
general public - for the purpose of acquiring information that may 
be helpful. However, any such contacts are usually informal and 
unstructured. They may be initiated by the agency or by the public. 
Typically, there is no opportunity for interchange of views among 
the parties, even where an agency chooses to conduct a hearing. 
Reg-neg offers such an opportunity through procedures designed to 
achieve consensus. 

In 1982, the Administrative Conference of the United States set 
forth criteria for identifying rulemaking situations for which reg-neg 
is likely to be successftil (Recommendation 82-4, 1 CFR §305.82- 



WHAT IS NEGOTIATED RULEMAKING? 



4). These criteria were intended to guide agencies in maicing the 
key determination whether reg-neg is appropriate for particular 
regulatory problems. The Conference also suggested specific 
procedures to be followed by agencies in applying this approach. 
Additional refinements, based on a study of initial agency 
experiences with reg-neg, were recommended in 1985 
(Recommendation 85-5, 1 CFR §305.85-5). The Conference 
recommendations, of course, are not mandatory procedures, but 
may best be used by agencies as a starting point for applying the 
concept of negotiated rulemaking to their own situations. Both 
recommendations are reprinted in the appendix. 

The Negotiated Rulemaking Act of 1990 (Public Law No. 101- 
648, codified at 5 U.S.C. §§561-570) establishes basic statutory 
requirements for the use of reg-neg, but allows great flexibility for 
implementation by federal agencies. The Act emphasizes effective 
communication with the affected public, adequate opportunity for 
public participation, and openness of the entire process. The Act 
encourages "innovation and experimentation with the negotiated 
rulemaking process or with other innovative rulemaking procedures 
otherwise authorized by law." (5 U.S.C. §561) The statute is 
reprinted in the appendix to chapter 3. 

Negotiated rulemaking should be viewed as a supplement to the 
rulemaking provisions of the Administrative Procedure Act. This 
means that the negotiation sessions generally take place prior to 
issuance of the notice and the opportunity for the public to comment 
on a proposed rule that are required by the Act (5 U.S.C. §553). In 
some instances, negotiations may be appropriate at a later stage of 
the proceeding. 



Why Use Negotiated Rulemaking? 

The adversarial nature of the normal rulemaking process is 
often criticized as a major contributor to the expense and delay 
associated with regulatory proceedings. Agency rulemaking may be 
perceived as merely the first round in a battle that will culminate in 
a court decision. The need to establish a formal record as a basis 
for potential litigation sharpens the divisions between parties, and 
may foreclose any willingness to recognize the legitimate 
viewpoints of others. 

In these circumstances, parties often take extreme positions in 
their written and oral statements. They may choose to withhold 
information that they view as damaging. A party may appear to put 



WHAT IS NEGOTIATED RULEMAKING? 



equal weight on every argument, giving the agency little clue as to 
the relative importance it places on the various issues. What is 
lacking is an opportunity for the parties to exchange views and to 
focus on finding constructive, creative solutions to problems. 

The negotiated rulemaking process uses negotiation and 
consensus, not to avoid conflict, but to channel the resources and 
efforts of the parties toward solving the problems presented. In 
short, the process fosters creative activity by a broad spectrum of 
interested persons, focused on producing better, more acceptable 
rules. 



Benefits of Negotiated Rulemaking 

When an agency considers using negotiated rulemaking to 
solve a regulatory problem, it must weigh the advantages and 
disadvantages of using the process. While some of the 
considerations derive from the specific circumstances of a rule and 
cannot be discussed here, others are more general. 

The long-term benefits of negotiated rulemaking include: 

• reduced time, money and effort expended on 
developing and enforcing rules, 

• earlier implementation, 

• higher compliance rates, and 

• more cooperative relationships between the agency 
and other parties. 

These benefits flow from the broader participation of the parties, 
the opportunity for creative solutions to regulatory problems, and 
the potential for avoiding litigation. 

In programs with a history of adversarial rulemaking, it is not 
unusual for parties to negotiate a settlement under the supervision of 
a court after the rule has been published. Particularly in such 
programs, negotiation of a rule prior to the agency's publication of 
a proposed rule can save the agency and other parties both time and 
resources. 

By avoiding litigation, regulated businesses (or others who 
need to plan for the future) can ordinarily know at an earlier time 
how the rule will affect them. This knowledge enables them to plan 
capital expenditures or production changes earlier than if they faced 
years of litigation and uncertainty about the outcome. Similarly, the 



WHAT IS NEGOTIATED RULEMAKING? 



public would receive on a more timely schedule those benefits that 
Congress intended to flow from the promulgation of the rule. (See, 
for example, "Regulating Wood-Stove Emissions," Washington 
Post, September 25, 1986, reprinted in chapter 13.) 

Reducing the risk of costly litigation, however, is only one of 
the benefits of negotiated rulemaking. Even in programs with no 
history of adversarial rulemaking, negotiations can provide the 
agency with a better understanding of the concerns of potentially 
affected parties, of the relative importance to them of different 
regulatory choices, and of the factual basis for the regulation. This 
is true whether or not consensus is attained. Regulatory 
negotiations can have the effect of enfranchising parties who have 
important interests at stake, but who may be relatively quiet or may 
feel relatively powerless under normal rulemaking procedures. 
Rules drafted by persons who must ultimately be governed by them 
are more likely to be practical, and therefore more acceptable to 
affected persons. 

Agencies typically receive a lot of both solicited and 
unsolicited input from affected parties during the pre-proposal stage 
of rulemaking. Frequently, data and opinions are received from 
affected parties sequentially: party A submits data on its industry's 
products or services; then party B, in a separate submission, 
describes the problems with the products or services provided to the 
public by the industry. Parties A and B do not communicate 
directly with each other, and are usually more interested in building 
a record that states their best positions rather than reaching some 
practical accommodation on the issues. The agency staff is 
presented only with polar views from the regulated community and 
the interested public. Staff must then fashion a regulation that is 
statutorily sound, practical, and capable of implementation, but 
without much "reality testing." This means that the rule is not 
subjected to any procedure whereby agency staff can learn the 
practical consequences of one or more alternatives under 
consideration, through observing reactions and interactions among 
potentially affected parties. In a negotiated rulemaking proceeding, 
representatives of all of the affected interests come together and can 
hear and discuss one another's positions and concerns. The give- 
and-take of the negotiation process can provide all participants, 
including the agency, with a realistic opportunity to have their 
assumptions and data questioned and tested by parties with other 
viewpoints. The result will be a more effective rule. 



WHAT IS NEGOTIATED RULEMAKING? 




Under normal rulemaking procedures, an agency is frequently 
the only party generating solutions to rulemaking dilemmas. 
Affected outside parties state their most favorable positions and 
criticize agency proposals without proposing practical solutions. 
The dynamic nature of negotiating forces each party to participate in 
crafting solutions to issues that are on the table for resolution. A 
party is usually not able merely to criticize a proposal under 
consideration. Other parties will press for finding an alternative 
proposal that might satisfy the dissenting party. The range of 
parties at the table in a well -structured regulatory negotiation 
provides the raw materials, the incentives, and the opportunity for 
greater creativity in crafting solutions than would be present if the 
rule were drafted by agency staff alone. 

Experience shows that parties in a reg-neg, faced with the 
reality that the agency will write its own rule if they cannot do it 
themselves, will have a strong incentive to achieve in a draft rule 
those points that are most important to them, while compromising 
on matters that are of less importance. Where consensus is 
achieved, participants in the negotiations often tend to acquire an 
interest in seeing the process succeed. They may feel that they have 
a stake in the resulting regulation. EPA has called this "ownership" 
of the negotiated rule. 

The benefits noted are discussed more fully in "An Assessment 
of EPA' s Negotiated Rulemaking Activities," which is reprinted in 
the appendix. 



Some Drawbacks 

Negotiated rulemaking can be resource-intensive in the short 
term for both the agency and the other affected interests. While 
there are likely to be significant long-term savings in total resources 
required, the concentration in the short term may cause concern. 

For the agency, there will be extra expenditures just to conduct 
the reg-neg process including costs of the convenor and mediator. 
In addition, the compression of the rulemaking schedule may 
require the agency to allocate staff and technical contractor 
resources for use over a shorter period of time than in rulemakings 
not involving reg-neg. The agency would also have to assign a 
senior manager to sit at the negotiating table. 

Agency internal review schedules during the negotiations are 
also compressed. Each related office or manager that needs to 



WHAT IS NEGOTIATED RULEMAKING? 



review the resolution of the issues has to respond in a timely 
manner so that the agency's negotiator can use the information and 
opinions generated in the negotiations. This can be an advantage 
for the conduct of the negotiations, but obviously can add to the 
administrative burdens of other agency personnel who are assisting 
the agency's representative or are otherwise involved in the 
rulemaking. 

Some parties, such as public interest groups, may have to 
provide staff time and resources in excess of what they normally 
spend on pre-proposal contacts with the agency and on post- 
proposal public comments. Participation in a negotiating committee 
brings with it the responsibility to review additional documents and 
to generate ideas, proposals, and perhaps data, which can take 
significant time to develop. The rule must be of major importance 
to such a group, or it will not likely want to commit itself to 
participate so heavily in the proceeding. 

The reader is referred to many of the papers included in 
chapter 13 of this Sourcebook, which comment further on the 
advantages and disadvantages of negotiated rulemaking. (An index 
to the articles appears at the beginning of chapter 13.) 



Criteria for Negotiated Rulemaking 

The Negotiated Rulemaking Act requires a determination by 
the agency head that the use of the reg-neg process is in the public 
interest (5 U.S.C. §563). The Act gives some guidelines to assist 
in this determination, based on agency experience and the 
recommendations of the Administrative Conference. Ultimately, the 
decision will depend on a judgment as to whether there is a 
reasonable likelihood that an appropriate committee can be formed 
that will be able to reach consensus on a proposed rule within a 
fixed period of time. The decision must also take into account the 
availability of sufficient resources to support the process and 
whether the agency is willing to commit those resources. 

An important consideration is whether the number of distinct 
interests concerned with the proposed rule, including any relevant 
government agencies, is small enough so that they can be fairly 
represented by not more than 20 to 25 negotiators. (Although the 
Administrative Conference initially recommended a maximum of 
15, experience has shown 20 to 25 to be manageable.) The Act 
specifies a maximum of 25 unless the agency head determines that a 
larger number is necessary (5 U.S.C. §565(b)). 



WHAT IS NEGOTIATED RULEMAKING? 




There should be a number of diverse issues that participants 
can rank according to their own priorities, so that there will be 
room for compromise on some of the issues as an agreement is 
sought. However, it is essential that the issues to be negotiated not 
require compromise of principles so ftindamental to the parties that 
there will be no willingness to negotiate. 

Parties must indicate a willingness to negotiate in good faith 
and no single interest should be able to dominate the negotiations' 
The existence of a deadline for completion of negotiations whether 
impos^ by statute, by the agency, or by other circumstances, has 
been found to impart a degree of urgency that can aid the 
negotiators in reaching a consensus on a proposed rule. 

Reg-neg is clearly not suitable for all agency rulemaking The 
circumstances in which it is likely to succeed are discussed in 
chapter 2. 

Procedur es for Negot iated Riilpmnking 

An agency contemplating use of negotiated rulemaking must 
tirst determine whether the problem that requires drafting of a rule 
IS amenable to this approach. The agency would normally ask one 
or more "convenors" -- either outside contractors or government 
employees who are not otherwise involved in the proceeding - to 
assess how well the circumstances meet the above criteria The 
convenor would recommend to the agency whether to establish a 
committee to negotiate a draft rule and might also submit a proposal 
tor the composition of the committee. 

In most instances, the committee would be formally chartered 
y^A^^l procedures of the Federal Advisory Committee Act 
(bALA). While the Negotiated Rulemaking Act makes FACA 
applicable to reg-neg committees in general (with some 
modifications discussed in chapter 3), Congress has occasionally 
c?^? .f^'^^'" legislatively required reg-neg committees from 
hACA. Also, the Unftmded Mandates Reform Act of 1995 (Public 
Law No. 104-4, §204) provides that FACA will not apply in certain 
instances involving only federal officials and elected officers of 
state, local, and tribal governments, or their designated employee 
representatives. ^ 

It is essential for the success of reg-neg that all concerned 
interests be represented in the negotiations. Therefore, the agency 
and the convenor must make reasonable efforts to ensure that all 
relevant interest groups and others who may be affected by the rule 
are aware of the proceeding. Public notices explaining the agency's 




WHAT IS NEGOTIATED RULEMAKING? 



plans for the proceeding, in addition to any general requirements for 
establisiiing advisory committees, can be very useful as a check 
against an essential party being overlooked. 

Agencies have found that the actual negotiations tend to be 
more successful when the committee has the assistance of one or 
more persons with specific experience in helping others negotiate 
solutions to complex multi-party problems. Whether referred to as 
"mediators" or "facilitators," persons skilled in techniques of 
dispute resolution have invariably been helpful to committees 
attempting to negotiate rules. Persons performing this role may be 
the same individuals who acted as convenors, but this is not 
essential. 

If the issues are unusually complex, or if any of the negotiators 
need assistance in dealing with their constituencies, then it may be 
advisable to have more than one mediator or facilitator. In some 
instances, prior knowledge of the subject matter of the negotiations 
may be necessary. However, in general, the most important factors 
in choosing "neutral" persons to assist a negotiating committee are 
skillfulness in dispute resolution and personal acceptability to all of 
the participants. 

It is also important for the agency to participate fully in the 
negotiations, making sure that at all times the participants are aware 
of what action the agency is likely to take if the committee does not 
reach an agreement. 

The goal of the committee is to reach consensus on a draft rule. 
The word "consensus" is usually understood in this context to mean 
that each interest represented concurs in the result, unless all 
members of the committee agree at the outset to a different 
meaning. If a consensus is reached by the committee, the agency 
ordinarily would publish the draft rule based on that consensus in a 
notice of proposed rulemaking -- and the agency would have 
committed itself in advance to doing so. Negotiations that do not 
result in consensus on a draft rule can still be very useful to the 
agency by narrowing the issues in dispute, identifying information 
necessary to resolve issues, ranking priorities, and finding 
potentially acceptable solutions. 

The Administrative Conference has recommended that at the 
conclusion of the negotiations the committee should formally report 
the outcome to the agency. In practice, some agencies have found 
that a formal report may be unnecessary if committee records 
contain sufficient documentation of what took place during the 



WHAT IS NEGOTIATED RULEMAKING? 



negotiations. The committee records or report should identify the 
issues addressed, areas of agreement, and areas where there is not 
consensus. If the committee reaches a consensus on a draft rule, the 
agency should be given both the text and a concise statement of its 
basis and purpose. The Negotiated Rulemaking Act specifies that, 
where consensus is reached, the committee shall transmit to the 
agency a report containing the proposed rule (5 U.S.C. §566(f)). 
In other cases, however, the Act gives the committee the freedom to 
determine what information, recommendations or materials, if any, 
are appropriate to give to the agency. 



Federal Agency Experience 

In 1983, the Federal Aviation Administration became the first 
Federal agency to try using negotiated rulemaking. The FAA 
assembled a committee to negotiate a revision of flight and rest time 
requirements for domestic airline pilots. The committee included 
representatives of airlines, pilot organizations, public interest 
groups, and other interested parties. The prior rules had been in 
effect for 30 years, a period of substantial change in the airline 
industry, during which the FAA had to issue more than 1000 pages 
of interpretations. On several occasions, the agency had proposed 
revisions, but withdrew them because of substantial opposition. A 
final rule based on the committee's negotiations was adopted in 
1985, which was not challenged in court. Since then, several 
agencies within the Department of Transportation have used reg-neg 
on a variety of issues. These include the National Highway Traffic 
Safety Administration, the Coast Guard and the Federal Railroad 
Administration. 

The Environmental Protection Agency has been the most 
consistent and committed user of negotiated rulemaking, accounting 
for approximately one-third of federal agency reg-negs. Rules 
based on a negotiated consensus include penalties for manufacturers 
of vehicles not meeting Clean Air Act standards, emergency 
exemptions from pesticide regulations, performance standards for 
woodburning stoves, control of volatile organic chemical equipment 
leaks, national emission standards for coke ovens, manifests for 
transporting hazardous wastes, and chemicals used in manufacturing 
wood furniture. In several additional proceedings, EPA based its 
rule on substantial agreements reached in the negotiations even 
though the committees were unable to agree completely on a 
proposal. (See the appendix for discussion and evaluation of EPA's 
early experience with reg-neg. A more comprehensive evaluation 





10 WHAT IS NEGOTIATED RULEMAKING? 



of EPA's reg-neg experience, conducted by the Administrative 
Conference, will be completed in late 1995.) 

The Occupational Safety and Health Administration has used 
reg-neg for proposed standards on worker exposure to benzene and 
to a chemical known as MDA, an animal carcinogen used in the 
manufacture of plastics. Although the benzene effort did not result 
in a negotiated rule, the MDA committee reached consensus on a 
set of recommendations to OSHA that served as the basis for the 
agency's rule. OSHA established a committee in 1994 to negotiate 
safety standards for workers erecting steel structures. In 1992, the 
Office of the Solicitor of the Department of Labor issued its 
Negotiated Rulemaking Handbook as a guide for departmental use 
of reg-neg. In 1994, the Department produced a videotape that 
includes a discussion of the MDA proceeding. 

Other agencies that have used negotiated rulemaking 
procedures include the Nuclear Regulatory Commission, Farm 
Credit Administration, Federal Communications Commission, 
Federal Trade Commission, and the Departments of Agriculture, 
Education, Health and Human Services, Housing and Urban 
Development, and the Interior. A complete list of federal 
negotiated rulemaking proceedings as of May 1995 appears in 
chapter 10. 



A ppendix 

The appendix to chapter 1 includes the two recommendations 
of the Administrative Conference on negotiated rulemaking and 
three documents reflecting some of the experience of the 
Environmental Protection Agency. The flow chart illustrates the 
steps in the procedure followed by EPA. An article by former 
Administrator Lee Thomas sets forth the reasons for EPA's active 
use of reg-neg. "An Assessment of EPA's Negotiated Rulemaking 
Activities" contains the findings of a study by the Program 
Evaluation Division of EPA. 



ACUS RECOMMENDATION 82-4 



11 




Recommendation 82-4, 1 CFR §305.82-4 



§305.82-4 Procedures for Negotiating 
Proposed Regulations (Reconunenda- 
Uon No. 82-4). 

The complexity of government ;-egulation 
has Increased greatly compared to that 
which existed when the Administrative Pro- 
cedure Act was enacted, and this complexity 
has been accompanied by a formalization of 
the rulemaldng process beyond the brief, 
expeditious notice and comment procedures 
envisioned by section 553 of the APA. Proce- 
dures in addition to notice and comment 
may, in some instances, provide important 
safeguards against arbitnuy or capricious 
decisions by agencies and help ensure that 
agencies develop sound factual bases for the 
exercise of the discretion entrusted them by 
Congress, but the increased formalization of 
the rulemaldng process has also had adverse 
consequences. The participants, including 
the agency, tend to develop adversarial rela- 
tionships with each other causing them to 
talce extreme positions, to withhold infor- 
mation from one another, and to attadc the 
legitimacy of opposing positions. Because of 
the adversarial relationships, participants 
often do not focus on creative solutions to 
problems, ranldng of the issues involved in a 
rulemaldng, or the important details in- 
volved in a rule. Extensive factual records 
are often developed beyond what is neces- 
sary. Long periods of delay result, and par- 
ticipation in rulemaking proceedings can 
become needlessly expensive. Moreover, 
many participants perceive their roles in the 
rulemaking proceeding more as positioning 
themselves for the subsequent Judicial 
review than as contributing to a solution on 
the merits at the administrative leveL Final- 
ly, many participants remain dissatisfied 
with the policy Judgments made at the out- 
come of rulemaking proceedings. 

Participants in rulemaking rarely meet as 
a group with each other and with the 
agency to communicate their respective 
views so that each can react directly to the 
concerns and positions of the others in an 
effort to resolve conflicts. £bcperience indi- 
cates tliat if the parties in interest were to 
work together to negotiate the text of a pro- 
posed rule, they might be able in some cir- 
cumstances to Identify the major issues, 
gauge their importance to the respective 
parties, identify the information and data 
necessary to resolve the issues, and develop 
a rule that is acceptable to the respective in- 
terests, all within the contours of the sub- 
stantive statute. For example, highly tech- 
nical standards are negotiated that have ex- 
tensive health, safety, and economic effects; 
lawsuits challenging rules are regularly set- 
tled by agreement on a negotiated rule; 
public law litigation involves sensitive nego- 



tiation over rule-like issues; and many envi- 
ronmental disputes and policies have been 
successfully negotiated. These experiences 
can be drawn upon in certain rulemaldng 
contexts to provide procedures by which af- 
fected interests and the agency might par- 
ticipate directly in the development of the 
text of a proposed rule through negotiation 
and mediation. 

The Federal Advisory Committee Act 
(FACA) has, however, dampened adminis- 
trative enthusiasm for attempts to build on 
experience with successful negotiations. 
Without proposing a general revision of 
FACA, the Administrative Conference urges 
that Congress amend the Act to facilitate 
the use of the negotiating procediu-es con- 
templated in this recommendation. 

The suggested procedures provide a mech- 
anism by which the benefits of negotiation 
could be achieved while providing appropri- 
ate safeguards to ensure that affected inter- 
ests have the opportunity to participate, 
that the resulting rule is within the discre- 
tion delegated by Congress, and that it is 
not arbitrary or capricious. The premise of 
the recommendation is that provision of op- 
portunities and incentives to resolve issues 
during rulemaking, through negotiations, 
will result in an improved process and better 
rules. Such rules would likely be more ac- 
ceptable to affected interests because of 
their participation in the negotiations. The 
purpose of this recommendation is to estab- 
lish a supplemental rulemaldng procedure 
that can be used in appropriate circum- 
stances to permit the direct participation of 
affected interests in the development of 
proposed rules. This procedure should be 
viewed as experimental, and should be re- 
viewed after it has been used a reasonable 
number of times. 

Recommendation 

1. Agencies should consider using 
regulatory negotiation, as described in 
this recommendation, as a means of 
drafting for agency consideration the 
text of a proposed regulation. A pro- 
posal to establish a regulatory negoti- 
ating group could be made either by 
the agency (for example, in an ad- 
vance notice of proposed rulemaking) 
or by the suggestion of any interested 
person. 

2. Congress should facilitate the reg- 
ulatory negotiation process by passing 
legislation explicitly authorizing agen- 
cies to conduct rulemaking proceed- 
ings in the manner described in this 




12 



WHAT IS NEGOTIATED RULEMAKING? 



recommendation. This authority, to 
the extent that it enlarges existing 
agency rulemaking authority, should 
be viewed as an experiment in improv- 
ing rulemaking procedures. According- 
ly, the legislation should contain a 
sunset provision. The legislation 
should provide substantial flexibility 
for agencies to adapt negotiation tech- 
niques to the circumstances of individ- 
ual proceedings, as contemplated in 
this recommendation, free of the re- 
strictions of the Federal Advisory 
Committee Act and any ex parte limi- 
tations. Legislation should provide 
that information tendered to such 
groups, operating in the manner pro- 
posed, should not be considered an 
agency record under the Freedom of 
Information Act. 

3. In legislation authorizing regula- 
tory negotiation, Congress should au- 
thorize agencies to designate a "con- 
venor" to organize the negotiations in 
a particular proceeding. The convenor 
should be an individual, government 
agency, or private organization, neu- 
tral with respect to the regulatory 
policy issues under consideration. If 
the agency chooses an individual who 
is an employee of the agency itself, 
that person should not be associated 
with either the rulemaking or enforce- 
ment staff. The convenor would be re- 
sponsible for <i) advising the agency as 
to whether, in a given proceeding, reg- 
ulatory negotiation is feasible and is 
likely to be conducive to the fairer and 
more efficient conduct of the agency's 
regulatory program, and (ii) determin- 
ing, in consultation with the agency, 
who should participate in the negotia- 
tions. 

4. An agency considering use of regu- 
latory negotiation should select and 
consult with a convenor at the earliest 
practicable time about the feasibility 
of its use. The convenor should con- 
duct a preliminary inquiry to deter- 
mine whether a regulatory negotiating 
group should be empanelled to devel- 
op a proposed nile relating to the par- 
ticular topic. The convenor should 
consider the risks that negotiation 
procedures would increase the likeli- 
hood of a consensus proposal that 
would limit output, raise prices, re- 
strict entry, or otherwise establish or 
support unreasonable restraints on 
competition. Other factors bearing on 



this decision include the following: 

(a) The issues to be raised in the 
proceeding should be mature and ripe 
for decision. Ideally, there should be 
some deadline for issuing the rule, so 
that a decision on a rule is inevitable 
within a relatively fixed time frame. 
The agency may also impose a dead- 
line on the negotiations. 

(b) The resolution of issues should 
not be such as to require participants 
in negotiations to compromise their 
fundamental tenets, since it is unlikely 
that agreement will be reached in such 
circumstances. Rather, issues involv- 
ing such fundamental tenets should 
already have been determined, or not 
be crucial to the resolution of the 
issues involved in writing the proposed 
regulation. 

(c) The interests significantly affect- 
ed should be such that individuals can 
be selected who wiU adequately repre- 
sent those interests. Since negotiations 
cannot generally be conducted with a 
large number of participants, there 
should be a limited number of inter- 
ests that will be significantly affected 
by the rule and therefore represented 
in the negotiations. A rule of thumb 
might be that negotiations should or- 
dinarily involve no more than 15 par- 
ticipants. 

(d) There should be a number of di- 
verse issues that the participants can 
rank according to their own priorities 
and on which they might reach agree- 
ment by attempting to optimize the 
return to all the participants. 

(e) No single interest should be able 
to dominate the negotiations. The 
agency's representative in the negotia- 
tions will not be deemed to possess 
this power solely by virtue of the 
agency's ultimate power to promulgate 
the final rule. 

(f) The participants in the negotia- 
tions should be willing to negotiate in 
good faith to draft a proposed rule. 

(g) The agency should be willing to 
designate an appropriate staff member 
to participate as the agency's repre- 
sentative, but the representative 
should make clear to the other partici- 
pants that he or she cannot bind the 
agency. 

5. If the convenor determines that 
regiUatory negotiation would be ap- 
propriate, it would recommend this 



ACUS RECOMMENDATION 82-4 



13 



procedure to the agency. If the agency 
and the convenor agree that regula- 
tory negotiation is appropriate, the 
convenor should be responsible for de- 
termining preliminarily the interests 
that will likely be substantially affect- 
ed by a proposed rule, the individuals 
that will represent those interests in 
negotiations, the scope of issues to be 
addressed, and a schedule for complet- 
ing the work. It will be important for 
potential participants to agree among 
themselves as to these matters, and 
their agreement can be facilitated by 
either the convenor or a possible par- 
ticipant conducting a preliminary in- 
quiry among identified interests. Rea- 
sonable efforts should be made to 
secure a balanced group in which no 
interest has more than a third of the 
members and each representative is 
technically qualified to address the 
issues presented, or has access to 
qualified individuals. 

6. The subject matter of the pro- 
posed regulation may be within the ju- 
risdiction of an existing committee of 
a non-governmental standards writing 
organization that has procedures to 
ensiu'e the fair representation of the 
respective interests and a process for 
determining whether the decision ac- 
tually reflects a consensus among 
them. If such a cozmnittee exists and 
appears to enjoy the support and con- 
fidence of the affected interests, the 
convenor should consider recommend- 
ing that negotiations be conducted 
under that committee's auspices in- 
stead of establishing an entirely new 
framework for negotiations. In such a 
case, the existing committee could be 
regarded as a regulatory negotiation 
group for purposes of this recommen- 
dation. (Alternatively, the product of 
the committee could be used as the 
basis of a proposed regulation pursu- 
ant to Administrative Conference Rec- 
ommendation 78-4.») 

7. To ensure that the appropriate in- 
terests have been identified and have 
had the opportunity to be represented 
in the negotiating group, the agency 



' Federal Agency Interaction with Private 
Standard-Setting Organizations in Health 
and Safety Regvilation, 1978 ACUS Recom- 
mendations and Reports 13, 1 CFR 305.78-4. 



should publish in the P'ederal Regis- 
ter a notice that it is contemplating 
developing a rule by negotiation and 
indicate in the notice the issues in- 
volved and the participants and inter- 
ests already identified. If an additional 
person or interest petitions for mem- 
bership or representation in the nego- 
tiating group, the convenor, in consul- 
tation with the agency, should deter- 
mine (i) whether that interest would 
be substantially affected by the rule, 
(ii) if so, whether it would be repre- 
sented by an individual already in the 
negotiating group, and (iii) whether, 
in any event, the petitioner should be 
added to the negotiating group, or 
whether interests can be consolidated 
and still provide adequate representa- 
tion. 

8. The agency should designate a 
senior official to represent it in the ne- 
gotiations and should identify that of- 
ficial in the Federal Register notice. 

9. It may be that, in particular pro- 
ceedings, certain affected interests will 
require reimbursement for direct ex- 
penses to be able to participate at a 
level that wiU foster broadly-based, 
successful negotiations. Unlike inter- 
venors, the negotiating group will be 
performing a function normally per- 
formed within the agency, and the 
agency should consider reimbursing 
the direct expenses of such partici- 
pauits. The agency should also provide 
financial or other support for the con- 
venor and the negotiating group. Con- 
gress should clarify the authority of 
agencies to provide such financial re- 
sources. 

10. The convenor and the agency 
might consider whether selection of a 
mediator is likely to facilitate the ne- 
gotiation process. Where participants 
lack relevant negotiating experience, a 
mediator may be of significant help in 
making them comfortable with the 
process and in resolving impasses. 

11. The goal of the negotiating 
group should be to arrive at a consen- 
sus on a proposed rule. Consensus in 
this context means that each interest 
represented in the negotiating group 
concurs in the result, unless all mem- 
bers of the group agree at the outset 
on another definition. Following con- 
sensus, the negotiating group should 
prepare a report to the agency con- 



14 WHAT IS NEGOTIATED RULEMAKING? 



taining its proposed rule and a concise 
general statement of its basis and pur- 
pose. The report should also describe 
the factual material on which the 
group relied in preparing its proposed 
regiilation, for inclusion in the agen- 
cy's record of the proceeding. The par- 
ticipants may, of course, be unable to 
reach a consensus on a proposed rule, 
and, in that event, they should identi- 
fy in the report both the areas in 
which they are agreed and the areas 
in which consensus could not be 
achieved. This coiild serve to narrow 
the issues in dispute. Identify informa- 
tion necessary to resolve issues, rank 
priorities, and identify potentially ac- 
ceptable solutions. 

12. The negotiating group should be 
authorized to close its meeting to the 
public only when necessary to protect 
confidential data or when, in the Judg- 
ment of the participants, the likeli- 
hood of achieving consensus would be 
significantly enhanced. 

13. The agency should publish the 
negotiated text of the proposed rule in 
its notice of proposed rulemaking. If 
the agency does not publish the nego- 
tiated text as a proposed rule, it 
should explain its reasons. The agency 
may wish to propose amendments or 
modifications to the negotiated pro- 
posed rule, but it should do so in such 
a manner that the public at large can 
identify the work of the agency and of 
the negotiating group. 

14. The negotiating group should be 
afforded an opportunity to review any 
comments that are received in re- 
sponse to the notice of proposed rule- 
making so that the participants can 
determine whether their recommenda- 
tions should be modified. The final re- 
sponsibility for issuing the rule would 
remain with the agency. 

[47 PR 30708, July 15. 1982J 



ACXJS RECOMMENDATION 85-5 



15 



Recommendation 85-5, 1 CFR §305.85-5 



§305.85-5 Procedures for Negotiating 
Proposed Regulations (Recommenda- 
tion No. 85-6). 

Negotiations simong persons representing 
diverse interests have proven to be effective 
in some cases in developing proposals for 
agency niles. In 1982, the Administrative 
Conference of the United States adopted 
Recommendation 82-4, 1 CFR S 305.82-4, 
encouraging the use of negotiated rulemak- 
ing by Federal agencies in appropriate situa- 
tions.' The concept of negotiated rulemak- 
ing arose from dissatisfaction with the rule- 
making process, which since the 1960's, in 
many agencies, had become increasingly ad- 
versarial and formalized— unlike the brief, 
expeditious notice and comment procedure 
envisioned in section 553 of the Administra- 
tive Procedure Act. Experience has now 
shown that negotiated rulemaking can be a 
practical technique in appropriate in- 
stances. 

Since Recommendation 82-4 was adopted, 
its recommended procedures have been fol- 
lowed four times by Federal agencies. The 
Federal Aviation Administration used nego- 
tiated rulemaking to develop a new flight 
and duty time regulation for pilots. The En- 
vironmental Protection Agency used negoti- 
ated rulemaking to develop proposed rules 
on nonconformance penalties for vehicle 
emissions and on emergency exemptions 
from pesticide regulations. The Occupation- 
al Safety sind Health Administration en- 
couraged labor, public interest, and industry 
representatives to negotiate a standard for 
occupational exposure to benzene. The ben- 
zene negotiations did not result in agree- 
ment among the parties on a proposed rule, 
but the other three negotiations did lead to 
substantial agreement resulting In two final 
rules (which have thus far not been chal- 
lenged) and one draft nile which, after 
public comment, is pending before the 
agency. 

The experience of these four cases has 
shown that the original recommendation 
was basically sound, and has provided a 
basis for the Administrative Conference to 
use in supplementing Recommendation 82- 
4. 



■Recommendation 82-4 used the term 
"regulatory negotiation" to refer to this 
process. The present recommendation sub- 
stitutes "negotiated nilemaking" to empha- 
size that it is addressing negotiation of 
rules, and not other uses of negotiations in 
the regulatory process. 



It Is important to view Recommendation 
82-4 and the present recommendation, 
taken together, as a guide to issues to be 
considered rather than a formula to be fol- 
lowed. Negotiation is intrinsically a fluid 
process that cannot be delineated in ad- 
vance. Accordingly, what will "work" in a 
particular case depends on the substantive 
issues, the perception of the agency's posi- 
tion by interested parties, past and current 
relationships among the parties, the author- 
ity of party representatives in the negotia- 
tions, the negotiating style of the represent- 
atives, the rnunber and divergence of views 
within each constituency represented, and 
the skill of the participants and mediators. 
These factors are mostly dynamic and their 
charcter is likely to change during the nego- 
tiating process. Proponents of negotiated 
rulemaking must recognize the unavailabil- 
ity of neat formal solutions to questions of 
who should participate, how the negotia- 
tions should be conducted, or even the defi- 
nition of "successful" negotiations. 

Agencies undertaking negotiated rulemak- 
ing must be prepared to deal with these real 
world uncertainties by pursuing a thought- 
fully flexible approach. Elements of Recom- 
mendation 82-4 and the present recommen- 
dation provide a conceptual framework 
within which to plan and conduct negotia- 
tions in a particular proceeding, but should 
not be taken as a formal model. An agency 
cannot merely transplant a pattern followed 
successfully by another agency, or even by 
itself on another occasion. Nevertheless, 
agencies that are considering negotiated 
rulemaking for the first time should find it 
helpful to discuss their plans with other 
agencies and persons experienced with the 
process. 

Some agencies have indicated a concern 
about the effect of the Federal Advisory 
Committee Act on negotiated rulemaking 
proceedings. The four agency experiences 
reviewed by the Administrative Conference 
have not shown that the Act, as interpreted 
by the sponsoring agencies and participants, 
impeded effective negotiations. Under cur- 
rent judicial and agency interpretations of 
the Act, it appears that caucuses and other 
working group meetings may be held in pri- 
vate, where this is necessary to promote an 
effective exchange of views. 

Another concern expressed by some agen- 
cies has been the potential costs associated 
with negotiated rulemaking. While aspects 
of the recommended process may entail 
some short-term additional costs, the Con- 
ference believe that potential long-range 
savings will more than offset the costs. 



16 



WHAT IS NEGOTIATED RULEMAKING? 



Moreover, agencies should be aware of op- 
portunities for assistance from within the 
government, for example, training provided 
by the Legal Education Institute of the De- 
partment of Justice, and mediation assist- 
ance by the Federal Mediation and Concilia- 
tion Service and the Community, Relations 
Service. 

Recommendation 

1. An agency sponsoring a negotiated 
rulemaking proceeding should take 
part in the negotiations. Agency par- 
ticipation can occur in various ways. 
The range of possibilities extends 
from full participation as a negotiator 
to acting as an observer and comment- 
ing on possible agency reactions and 
concerns. Agency representatives par- 
ticipating in negotiations should be 
sufficiently senior in rank to be able to 
express agency views with credibility. 

2. Negotiations are unlikely to suc- 
ceed unless all participants (including 
the agency) are motivated throughout 
the process by the view that a negoti- 
ated agreement will provide a better 
alternative than a rule developed 
under traditional processes. The 
agency, accordingly, should be sensi- 
tive to each participant's need to have 
a reasonably clear expectation of the 
consequences of not reaching a con- 
sensus. Agencies must be mindful, 
from the beginning to the end of nego- 
tiations, of the impact that agency 
conduct and statements have on party 
expectations. The agency, and others 
involved in the negotiations, may need 
to communicate with other partici- 
pants—perhaps with the assistance of 
a mediator or facilitator— to ensure 
that each one has realistic expecta- 
tions about the outcome of agency 
action in the absence of a negotiated 
agreement. Communications of this 
character always should consist of an 
honest expression of agency actions 
that are realistically possible. 

3. The agency should recognize that 
negotiations can be useful at several 
stages of rulemaking proceedings. For 
example, negotiating the terms of a 
final rule could be a useful procedure 
even after publication of a proposed 
nile. Usually, however, negotiations 
should be used to help develop a 
notice of proposed rulemaking, with 
negotiations to be resumed after com- 



ments on the notice are received, as 
contemplated by paragraphs 13 and 14 
of Recommendation 82-4. 

4. The agency should consider pro- 
viding the parties with an opportunity 
to participate in a training session in 
negotiation skills just prior to the be- 
ginning of the negotiations. 

5. The agency should select a person 
skilled in techniques of dispute resolu- 
tion to assist the negotiating group in 
reaching an agreement. In some cases, 
that person may need to have prior 
knowledge of the subject matter of 
the negotiations. The person chosen 
may be styled "mediator" or "facilita- 
tor," and may be, but need not be, the 
same person as the "convenor" identi- 
fied in Recommendation 82-4. There 
may be specific proceedings, however, 
where party incentives to reach volun- 
tary agreement are so strong that a 
mediator or facilitator is not neces- 
sary. 

6. In some circumstances. Federal 
agencies such as the Federal Media- 
tion and Conciliation Service or the 
Community Relations Service of the 
Department of Justice may be appro- 
priate sources of mediators or facilita- 
tors. These agencies should consider 
making available a small number of 
staff members with mediation experi- 
ence to assist in the conduct of negoti- 
ated rulemaking proceedings. 

7. The agency, the mediator or facili- 
tator, and, where appropriate, other 
participants in negotiated rulemaking 
should be prepared to address internal 
disagreements within a particular con- 
stituency. In some c£ises, it may • be 
helpful to retain a special mediator or 
facilitator to assist in mediating issues 
internal to a constituency. The agency 
should consider the potential for in- 
ternal constituency disagreements in 
choosing representatives, in planning 
for successful negotiations, and in se- 
lecting persons as mediators or facili- 
tators. The agency should also recog- 
nize the possibility that a group 
viewed as a single constituency at the 
outset of negotiations may later 
become so divided as to suggest modifi- 
cation of the membership of the nego- 
tiating group. 

8. Where appropriate, the agency, 
the mediator or facilitator, or the ne- 
gotiating group should consider ap- 



ACUS RECOMMENDATION 85-5 17 



pointing a neutral outside individual 
who could receive confidential data, 
evaluate it, and report to the negotia- 
tors. The parties would need to agree 
upon the protection to be given confi- 
dential data. A similar procedure may 
also be desirable in order to permit 
neutral technical advice to be griven in. 
coruiection with complex data. 

9. Use of a "resource pool" may be 
desirable, to support travel, training, 
or other appropriate costs, either in- 
curred by participants or expended on 
behalf of the negotiating group. The 
feasibility of creating such a pool from 
contributions by private sources and 
the agency should be considered in the 
pre-negotiation stages. 

[50 FR 52895, Dec. 27. 19851 



18 



WHAT IS NEGOTIATED RULEMAKING? 



NEGOTIATED 
RULEMAKING AT EPA 



EVALUATION 



* Identify issues and deadlines 

* Identify interested parties 

* Compare to selection criteria 

* Confirm management interest 

* Select convenor 



S» 



CONVENING-PHASE 1 



* Identify additional parties 

* Discuss RegNeg with parties 

* Discuss issues with parties 

* Determine willingness of parties to negotiate 

* Report to agency 

* Obtain agency management commitment 

* Preliminary selection of 15-25 participants 



CONVENING-PHASE 2 



* Obtain parties commitment to negotiate 

* Publish "notice of intent to negotiate" 

* Process FACA charter 

* Select facilitator/mediator 

' Respond to public comments on "notice" 

* Adjust committee membership if necessary 

* Arrange organizational meeting 

* Arrange committee orientation/training 



^ 




EPA FLOW CHART 



19 




NEGOTIATIONS 



* Establish groundniles/protocols 

* Define "consensus" 

* Set meeting schedule 

* Publish notices of meetings 

* Review available information and issues 

* Review draft rule or proposals if available 

* Establish work groups or subcommittees as necessary 

* Negotiate text or outline of proposed rule 



i 



RULEMAKING 



* Negotiations concluded 

* If consensus if reached on language of rule: 

* Agtflcy circiriatM draft for inttmai/extemal revitw 

* Agtncy pubHshM eonstnsM as draft rule 

' If consensus is reached only on issues or outline: 

* Agtncy drafts propotad nii« 

* Agtncy circulattt draft for inttmal/txttmal rtvitw 

* Agtncy pvMislits NPRM 

' If consensus is not reached: 

* Agtncy procttds with rultmaking using discussions as a 

* giiM« 

* Agtncy drafts and publishts NPRIN 

* Draft rule is subject to public comment 

* Committee nottfied of public comments 

* Agency revises rule if necessary 

* Agency publishes final rule 



20 



WHAT IS NEGOTIATED RULEMAKING? 




ADMINISTRATIVE 

LAW NEWS •' ■" 

Published by the Section of Administrative Law, American Bar Association, Vol. 13, No.l 



The Successful Use of Regulatory Negotiation by EPA 

by L«« M. Thomas 



(Editor's noU: This article is an edited version of re- 
marks made by the Administrator of the U.S. Environ- 
mental Protection Agency at a colloquium on improving 
dispute resolution procedures in the federal government. 
The colloquium was presented by the Administrative 
Conference of the United States on June 1, 1987, as part 
of its program in alternative dispute resolution. The pro- 
ceedings of the entire colloquium xvill be published in a 
forthcoming issue of the American University Journal 
of Administrative Law.) 

The concept of negotiation and consultation is be- 
coming a pan of the institutional fabric of the U.S. 
Environmental Protection Agency. As the Admin- 
istrator for the last 2'A years and Assistant Admin- 
istrator for two years before that, it is easy for me to 
understand why this has happened. EPA frequently 
finds itself involved in disputes, and I would rec- 
ommend the Administrator's job to only those who 
like dispute resolution. 

The issues EPA confronts are complex. Resolving 
those issues requires input from many different par- 
ties. We have a broad range of responsibilities. Our 
statutory authority is incorp>orated in a dozen laws. 
Our responsibilities may, at any particubr time, range 
from pesticide decisions to decisions relating to 
whether or not to fill a wetland area or what kind of 
standard to set for air pollution control. So the work 
we do is technically complex. 

It is also legally complex. Fortunately, I am not a 
bwyer, and that has helf>ed me sort through the is- 
sues. The laws oftentimes lack extensive legislative 
history to guide us. Many of the laws that we admin- 
ister are relatively new, enacted within the last five 
to ten years. But each has certainly been tested ac- 
tively since enactment. 

And, the issues we deal with arc definitely emo- 
tionally complex. Many people have strong opinions 
on our standards and how we implement our stat- 
utes. In many cases that emotion revolves around the 
issue of residual risk, because that in fact is what we 
often end up dealing with. The debate is not on the 



level of protection. Rather, it is frequently on what 
level of risk remains once our particular standard or 
our [particular action is completed. Additional de- 
bate may focus on the economic impact of the action 
we may be promoting. 

The players in these debates arc many. They in- 
clude our agency; other federal agencies that have 
direct involvement and interest in how we resolve 
issues; the regulated community, and for us titat is 
virtually all business and industry, and many levels 
of government; public interest groups, particularly 
those that have been formed to advocate niore en- 
vironmental controls; our counterpart state and lo- 
cal regulators — all states have counterpart agencies 
to ours and in many cases so do local governments; 
and, finally, citizens at large or citizens who have a 
particular interest in a site-specific action we are tak- 
ing. 

Now, with that range of players and that range of 
complexity, and with the fact that our issues are not 
becoming less difficult but, I believe, more difficult 
to resolve, we have established negotiation, consul- 
tation, and improved connnunication as an ovei'all 
management theme within our agency. Particularly 
over the last several years we have worked hard to 
see how that theme could be incorporated into the 
actions that our agency takes. 

SjJecifically we have incorporated negotiation and 
consultation into our regulatory development pro- 
cess, but beyond that we have also moved to try to 
establish this approach as a part of our policy devel- 
opment and as a pwrt of our site-specific action pro- 
gram in the agency — whether it is cleaning up a 
Superfund site or going forward to permit a hazard- 
ous waste disposal facility. Finally, we are moving 
forward to establish this concept as a major part of 
our enforcement efforts. 

Regarding regulatory negotiation, several years 
ago we looked at the processes EPA used for devel- 
oping regulations and decided to explore the utility 
of supplementary and complementary approaches. 
(continued on page 3) 



Copyright 6 1987 American Bar Association Reprinted by permission. 



Produced by the ABA Press 



SUCCESSFUL USE BY EPA 



21 



Regulatory Negotiation 

(continued from page 1) 

We did this for several reasons: 

First, our major regulations were taking a very long 
time to complete, three to five years on average. I 
am signing a regulation in the next couple of days in 
the air program that took ten years to develop. Reg- 
ulations may take that long for a variety of reasons, 
and we were interested in seeing whether we could 
shorten that time frame. 

Second, as I indicated, our regulations are quite 
complex technically and otherwise, and we were in- 
terested in seeing how we could bring to the table as 
much technical information as possible while the reg- 
ulations were being developed. 

Third, we were interested in seeing if there were 
alternatives to the traditional rulemaking process of 
going out with a proposal, soliciting comments, ana- 
lyzing the comments, and then going final. Was there 
another way to solicit technical input as the regula- 
tion was being developed? 

Finally, we wanted to reduce the amount of man- 
power and time we were sp>ending on litigating our 
regulations. We found that over three-quarters of 
our regulations once promulgated were litigated, a 
process that we felt was exacting quite a toll on our 
own agency resources. 

EPA's regulatory negotiation process began with 
a pilot effort back in 1983. It is an effort that now 
has resulted in seven major rulemakings going 
through the negotiation process. Three of them ac- 
tually are out as final regulations. It started off with 
a regulation for nonconformance penalties for major 
truck makers, and went through emergency pesti- 
cide exemption regulations, farm worker protection 
standards, regulations for wood-burning stoves, reg- 
ulations for minor permit modifications for hazard- 
ous waste facilities, a regulation for the underground 
injection of hazardous waste, and a regulation for 
the control of asbestos in schools. 

Now, those regulations, as you can see, cover a 
range of subjects. All of them were regulations that 
had major interest as far as constituent groups were 
concerned. As a result of our experiences with these 
seven issues, we have evolved to the point in the 
agency that clearly the concept of negotiation in 
rulemaking has become an institutional part of our 
review of the course a rule should take at the begin- 
ning of the rulemaking process. We have established 
criteria that are used at that (>oint to determine which 
rules would be appropriate for a negotiation path as 
opposed to the traditional path. 

We have concluded within the agency — and I will 
give you some specifics — that regulatory negotiation 



does work. We term it successful in our agency, par- 
ticularly when we look back at the issues I talked 
about: timeliness, the ability to get as much techni- 
cal information as possible on the table during the 
development of the regulation, and the issue of liti- 
gation of the regulation once it has been completed. 

Of the ones that have been completed and now 
are final regulations, we haven't had litigation. I think 
they are better regulations in that we felt there was 
very good technical information put on the table and 
debated during the negotiation process and there was 
a feeling of "ownership" of the regulation by the 
negotiators when the regulation was completed. We 
believe that compliance is very high because the reg- 
ulated community participated actively in the nego- 
tiation process. They felt they had their day, they 
felt they had their technical information put on the 
table, and more than anything else I think they 
understood exactly what was meant by the regula- 
tion and what was expected of them once the regu- 
lation was final. 

So I would say, as we look back upon our experi- 
ences with negotiated rules so far, they have saved 
time. Regulatory negotiation shortened our total 
process on each one of them. 

It promoted what 1 have termed "ownership" — 
having a stake in the regulation — on the part of the 
constituent groupts, environmental groups, the reg- 
ulated community, citizen interest groups, EPA par- 
ticipiants, other federal agencies, and stale and local 
regulators, who all p>articip>ated. 

Regulatory negotiation has reduced litigation. At 
least at this p>oint, with that limited number of reg- 
ulations, we have seen a significant difference in the 
litigation that has resulted. We think it has provided 
more accountability as far as EPA is concerned in 
that the p>eople developing the regulation in our 
agency literally sat across the table from and were 
very accountable to the regulated community and 
other interest groups, on the issues, the direction, 
and the resolution of those issues. In each instance 
we went forward with the commitment we made in 
the beginning, which was to use the consensus doc- 
ument that we proposed as a rule. 

We also found that the [Negotiation process has had 
side benefits to p>articipants. It has had traditionally 
adversarial groups sitting across the table from one 
another, learning exactly what the key issues of con- 



22 



WHAT IS NEGOTIATED RULEMAKING? 



Regulatory Negotiation 

(continued from page 3) 

cem were from ihe various groups. In pesticide reg- 
ulation, air quality regulation, or in other regulations 
that we have developed, we have seen significant im- 
provement in the communication among groupts that 
traditionally have had an adversarial relationship with 
respect to our program. 

What else did we learn as a result of those nego- 
tiations? Generally there is a tight lime frame. We 
found that one of the critical elements for success of 
the negotiation process is to have a deadline against 
which you work, whether it is a court-imposed dale, 
a statutorily imposed date, or an agency-imposed date 
that is a forcing factor for negotiation. We learned 
that the negotiation process for rulemaking is re- 
source-intensive for all participants, both in terms of 
participation on the part of the negotiators and also 
in terms of resources required to participate fully. 
Some of the public interest groups particubrly have 
voiced concern about the ability to negotiate fully at 
the table without full commitment or resources be- 
hind them — not just resources to come to and par- 
ticipate in the sessions, but technical resources 
enabling them to bring to the table the full ability 
that an industry group, for instance, would have. 

Also, we learned that regulatory negotiation re- 
quires effective screening of candidate regulations. 
Not all rules should go through a negotiation pro- 
cess. It is a limited subset of our major rules that I 
think would be appropriate for that process. 

One of the things we have found b that commit- 
ment to developing a rule is key to having good ne- 
gotiation sessions. If we have general consensus 
among negotiating parties that the rule will actually 
be develop>ed and the negotiation is around the par- 
ticular asp>ects of what the rule will encompass, as 
opp>osed to whether or not to have a rule, this un- 
derstanding will be a major element of successful 
regulatory negotiation. Selection of a facilitator or 
maybe several facilitators, with relevant skills, is also 
critically important for a regulatory negotiation ef- 
fort. 

In most of the rules I mentioned, facilitators from 
outside EPA were utilized. In some cases we had a 
team of ^cilitators. In one instance the facilitator 
was an EPA employee outside the the program office 
that had prinary responsibility for the rule. We think 
it is a key to success to ensure tliat the facilitator b 
technically skilled both in the processes of facilitation 
and in ability to understand the technical aspects of 
the rule that is being develop)ed. If one facilitator is 
not strong in both, co-facilitators may well be re- 
quired, and we have sometimes followed this route. 



Full consensus is not necessary for success. The 
negotiating group should set a definition of success, 
with the group itself having some control over its 
own destiny for all important elements of the regu- 
latory negotiation process that are identified. Clearly, 
up front, each one of the participants, including EPA, 
must understand what the ground rules are, con- 
cerning, for instance, individuals who want to leave 
the gp'oup during the process, whether there must 
be full consensus at the conclusion of the process, 
what commitments EPA has made to go forward with 
the rulemaking, and how this procedure ties in with 
the agency's overall administrative process. We would 
follow with full review of the rule once it was devel- 
op>ed to the stage of seeking comments, and then for 
final agency action. 

My advice to other agencies that might want to 
use either a negotiated rulemaking process or an- 
other kind of alternative process to resolve some is- 
sue is first to take a look at experiences that we and 
others have had in going forward with alternative 
dispute resolution. Particularly for rulemaking, look 
at" what we have learned and what others have 
learned, and then take a concrete example within 
the agency, using the alternative dispute resolution 
technique. 

Since the time our first negotiated rulemaking be- 
gan and people saw the process actually working, we 
have come to be more concerned with screening re- 
quests for regulatory negotiation than with soliciting 
suggestions for candidate regubtions. We develop>ed 
real believers, I think, on the part of virtually every- 
body who participated. 



EPA ASSESSMENT 23 



An Assessment of EIA's Negotiated Rulemaking Activities 

Program Evaluation Division 

Office of Management Systems and Evaluation 

Office of Policy, Planning and Evaluation 

Decanber 1987 

This report presents the findings of a study of EEA's Negotiated Rulanaking 
activities. "Hie Program Evaluation Division <PED) conducted the study at the 
request of the Director of the Office of Standards and Regulations (OSR) in EPA's 
Office of Policy, Planning and Evaluation (OPPE) . OSR is the organizational 'home* 
of the Regulatory Negotiation Project staff, which conceived and designed the 
undertaking and is responsible for coordinating, and providing adninistrative and 
logistical support to. EPA's negotiated rulemaking activities. 

Section 1; Main message 

PED's analysis indicates that negotiated rulentaking can sometimes be better 
than the conventional rulemaking process. In the 'right' situations, negotiated 
ralenaking can produce proposed rules that meet statutory requirements but are more 
praqnatic than proposals EPA would be likely to develop on its own and may produce 
better eivironmental results; in addition, negotiated rules are more likely (than 
conventional rules) to be accepted by the affected industries and other interested 
parties involved in developing them. Negotiation also may reduce the time it takes 
to proceed from proposed to final rulemaking. Picking the 'right' situations is 
criticed.; frequently undertaking negotiations in cases where it is inappropriate or 
unlikely to produce consensus could eventually discredit the process. 

Section 2; Background 

EPA has about 200 to 250 rulemaking activities underway at all times. Nearly 
all are conducted in accordance with the notice-and-coninent requirements of the 
Ackninistrative Procedure Act (i.e., 'conventional' rulemaking). In conventional 
rulemaking. EPA gathers data from various sources and may have informal meetings 
with interested or affected groups to seek information and/or test ideas. EI9V then 
decides on the content of a proposed rule and publishes it. All interested parties 
may submit written comnents, and. the Agency frequently receives many detailed 
connents; in addition, the Agency sometimes holds public hearings. After reviewing 
the comments and any testimony presented at hearings, the Agency must prepare and 
publish a final rule; doing so usually takes several months, sometimes years. About 
80 percent of EPA's final rules are challenged in court. 

Four years ago, the Agency announced [1] that it would undertake a 
pilot-project to investigate the value of negotiated rulemaking, identify the types 
of requlations most appropriate for negotiation, and determine how best to conduct 
such neqotiations. In negotiated rulemaking, a designated EPA official [2J and 
representatives of groups interested in and/or affected by a rulanaking activity 



ril Federal Register. February 22, 1983, Vol. 48, No. 36. Pg. 7494. 



24 WHAT IS NEGOTIATED RULEMAKING? 



Page 2 Negotiated Rulemaking 



have a series of meetings in which they attempt to reach consensus on all or the 
most important features of a proposed rule. This negotiating coimiittee is chartered 
as an Advisory Camiittee under the Federal Advisory Conmittee Act; its plenary and 
subconmittee meetings are open to the public. To the extent that any consensus 
reached by the negotiating conmittee is consistent with the Agency's statutory 
authority, EPA is conroitted to using it as the basis of a Notice of Proposed 
Rulemaking (NFRM) . 

EEA's criteria for selecting rulemakings for negotiation [3] are aimed at 
identifying situations in which negotiations have a 'high probability of success.' 
Toward this aid, the criteria reflect a preference for rulemakings in which all or 
many of the follcwing conditions exist: 

- There is a limited number of interrelated issues to be resolved. There 
are severed ways in which they can be resolved. The relevant statutes 
must acconmodate these options. 

- There are no serious obstacles to reaching consensus, i.e., the rulemaking 
will not challenge participants' fundamental values. 

- There is a statutory or judicial deadline for conpleting the rulemaking or 
some other action-forcing mechanism. 

- The prospective participants share cotimon ground on at least some of the 
issues to be negotiated. 

- The costs and benefits of the rulemaking are concentrated on a few 
entities. 

- There are relatively few interested and affected parties — and they are 
readily identifiable. 

- The prospective participants are willing to negotiate in good faith. 

- The prospective participants see themselves as having on ongoing 
relationship with EPA. 

Oice a proposed rule is published, rulenoking proceeds in accordance with the 
Adninistrative Procedures Act and other applicable statutes; that is, the Agency 
considers public coiments and prepares and publishes a final rule. Negotiating 
conmittees have played no formal role in final rulemaking; in some cases, however. 
EPA has informally (but on-the-record) talked with them about the public cottinents on 
the proposed rules. 



\2] In the seven negotiated rulemakings undertaken thus far. Office Directors have 
served as EPA's negotiators four times; in the other three, the EPA negotiator was a 
deputy Office Director, a division director, and a branch chief. 

[3] The Federal Register notice cited in Footnote No. 1 described the selection 
criteria. Since that time, the only substantive change has been the addition of a 
statement that the 'parties should view themselves as having an ongoing relationship 
with the Agency. . . ' . 



EPA ASSESSMENT 25 



Page 3 Negotiated Ruleinaking 



Section 3 : Pur poses an d methods of the study 

Thus far, EPA has undertaken negotiated rulemaking seven times. PED's study 
was aimed at determining how well negotiated rulemaking has worked, how it compares 
with conventional rulemaking, and investigating whether and how EPA could make 
inprovements in its criteria for selecting rulemakings for negotiation. Whether 
consensus had been achieved was among the factors taken into account in this study, 
but PED also looked at such questions as whether the negotiations produced better 
information or better results than the Agency ordinarily gets from the conventional 
rulemaking process in the pre-proposal stage. 

For these purposes, the PED Project Team reviewed relevant itaterials, including 
published literature on regulatory negotiation, the documentation of EPA's first two 
negotiated rulemakings [4] [5] . minutes and sumnaries of the meetings of 
negotiating connittees, texts of negotiated proposals, and other public documents. 
The Project Team also interviewed many EPA managers and staff members and other 
people who have participated in the seven negotiated rulemakings undertaken thus 
far, as well as some of the people who have served as convenors and facilitators. 

In performing this assessment of EPA's negotiated rulemaking activities, PED 
necessarily used people's subjective views as raw naterial, although interviewees 
were always asked to provide — and frequently did provide-facts and examples to 
support their statements. Also, it must be emphasized that a controlled comparison 
of negotiated and conventional rulemaking could not be made. C*ie of the seven 
negotiated rulemakings (the one dealing with the process for review and approval of 
RCRA permit modifications) dealt with the same subject that had been addressed in a 
previous proposal develc^aed through conventional rulemaking. Another one (i.e. the 
New Source Performance Standards for residential wood-burning stoves) was at least 
conceptually similar to the many other New Source Performance Standards developed 
over the past 15 years. Thus. PED had some empirical basis for comparing 
conventional and negotiated rulemaking, but, in both instances, the conventional and 
negotiated proposals were developed at different times and under different 
regulatory situations. 



[4] Documention of EPA's Non-conformance Penalties Reg ulatory Negotiated Ruleniakinq 
Dem onstration . Prepared by Lawrence Susskind and Jerry NVcMahon. Program on 
Negotiation. Harvard Law School, January 1985. 

[5] Documentation of EPA's Pesticide Exemption Regulat ory Negotiation . Prepared by 
Lawrence Susskind and David Kronenberq. Program on Negotiation. Harvard Law School. 
July 1985. 



26 



WHAT IS NEGOTIATED RULEMAKING? 



f&ge 4 Negot:iated R\;lanaking 



Section 4: Suimaxy of EEA's negotiated rulenaking activities 

Here are descriptions of the subjects of the seven negotiated rulatoJcing 
efforts undertaken thus far — together with characterizations of the outooraes. 



NGDrOonfonnance penalties 



- Procedures for detenniiaticn of 
peimlties to be paid by 
nenufacturers of heavy-duty engines 
that cannot meet EEA standards 



Consensus reached on all issues. Firal 
rulemaking has been oonipleted. No 
litigation. 



Pesticide anergency exemptions 

- Procedures for EEA approval of 
State requests for anerg^xry 
use of unregistered pesticides 



Qcmsensus reached on exact language of 
proposed rule. Final rulaiaking has he&i 
ociiC>leted. tto litigatioi. 



F^LOtMOxicer protection 

- Racjuirements for protective 
clothing and equipment, warning 
of hazards, re-entry intervals, 
and other itans 



Negotiations broke down. ESti is 
developing proposed rule. 



ROUV pexndt ncdif icaticns 



Procedures for State/EEA approval 
of modifications to RO^ pennits 
for hazardous waste facilities 



Qonsensus on all issues, except that 
one member dissented on one issue. 
EPk has published proposed rule. 



(toderground iirjecticn of hazardous wastes 



- Rules for siting, ccnstructicn, 
qperaticn. mcnitoring, and closure 
of hazardous waste injecticn wells 



Informal agreanent was reached 
on sane of the issues. EP^ has 
published proposed rule. 



Mbodstoves New Source Perfonnance Standard 



Etadssicn standards and testing 
requireotents applicable to new 
residential wood-burning stoves 



Oogosensus reached on exact language of 
proposed rule. EPA will publish final 
rule en schedule. 



Asbestos in schools 



- Requiranents for identification and 
ndtigaticn of asbestos hazards in 
public and private elanentary and 
secondary schools. 



Limited accord — with reservations — 
achieved on nair/ issties. About 150 
public oonments submitted; kbit/ were 
critical of key provisions of the 
proposal. 



EPA ASSESSMENT 27 



Page 5 Negotiated Rulemaking 



Section 5; Findings 

PTNDTWS to. 1 ; Npcfotiated rnTemakinq proposals have been more pragmatic in 
some resppcts. and could produce better «^vironmental results in some instancps. 
than thosf ffft prpha hly would havp dPvplopfKJ through conventional rulemaking. 

Examples supporting this finding cu:e numerous. Even in the case o£ underground 
injection of hazardous waste, in which consensus was not reached, EBk's proposed 
rules are more pragmatic in some respects, and could produce better environmental 
results, than those the Agency probably would have developed on its own. 

Nonconformance penalties 

- In the event of nonconformance, the number of tests to be conducted to 
determine penalty can range from 4 to 26. Manufacturers have three 
options for deciding on the number of tests; thus, they can make 
trade-offs between the number of tests and potential penalties. E^ 
probably would have required the maximum number of tests in all cases. 

- Penalty rates are increased year-by-year. How quickly they increase 
depenc^ on how much manufacturers use them — the more they eire used 
(i.e., the more often that nonconformance occurs) . the more quickly they 
increase in order to provide incentives for correcting nonconformance. 
This approach was developed at the negotiating table. 

RSft pennit modificationa 

- Permit modifications are divided into three classes. Routine 
modifications having no environmental significance (Class 1 
modifications) generedly will not require prior State/EP^ approval. 

- Qass 2 permit modifications are automatically approved if the 
euithorized State agency or EPA fails to act within a specified time. 

- State/EPA can give a permittee temporary authorization to proceed with 
facility modifications needed for proper waste nanagment and/or 
protection of human health and the environment while the permittee's 
request for a permit modification is being reviewed. 

- Public has opportunities for more informal participation than EPA would 
have prqposed; informal procedures generally eire less expensive and less 
adverseurial than formal hearings. 

tfrtderground infection of haMrdniis wasi-PB 

- The provisions of the proposed rule — including those defining and 
setting conditions for demonstrating 'no migration' — are more 
conprehensive and explicit than they otherwise would have been. 

- The use of fluid seals will be allowed under certain conditions; EPA 
had not planned to cdlow them, but information brought to the 



28 WHAT IS NEGOTIATED RULEMAKING? 



Page 6 Negotiated Rulemaking 



negotiations satisfied the Agency that fluid seals are sometimes 
adequate. 

- Requirements for groundwater monitoring around hazardous waste wells 
will be worked out case-by-case in accordance with criteria set forth in 
the proposed rule. EPA had planned to require well owners/operators to 
conduct monitoring in accordance with prescribed regimes. 

- The area that must be checked for the presence of abandoned wells will 
be larger than EPA had planned to propose. 

- Post-closure care provisi(»is are included; EPA had not planned to 
include such provisicms. 

Woodstoves NSPS 

- Manufacturers agreed to carply with the pro posed standards by mid-1 9fl8 — at 
least two years earlier than they could have come into compliance if they had 
waited for issuance of final standards. "Diey were willing to agree to 
quicker compliance based on confidence in the consensus achieved by the 
negotiating coranittee- 

- Manufacturers must perform self-audits of selected woodstoves coming off 
their production lines, but they will not be subject to 'look -back' penalties 
if any models later are found in violation. EPA will have the right to test 
some production- line woodstoves to assure that manufacturers' testing is 
reliable. 

- Manufacturers already certified in Oregon are exenpt from additional testing 
to demonstrate coopliance with EPA's initial standards. 

- One-year certification of conpliance is automatic if a manufacturer 
encounters delays in getting testing done or getting EPA to review test 
results. 

- Ilie negotiating coimiittee came up with a method of measuring emissions that 
is more accurate than the one EPA had suggested. 

FIM)INS ND. 2 ; Negotiati ons have fa cilitated exchanges of information and 
understanding of the issups in dispute. 

Participants in all of EPA's negotiated rulemaking efforts came away with new 
information (i.e-, information they previously did not have and in some cases did 
not even know existed) . EPA was a major beneficiary of this information flow. 

In the RO(A. UIC, Farmworker Protection, and Asbestos efforts in particular. 
many of the participants provided information and insights about 'real world' 
practices and conditions that helped guide the negotiating coninittees toward 
pragmatic regulatory requirements. 

In the Asbestos rulemaking, some participants brought in expert consultants who 
made significant contributions and previously had been unknown to EPA. 



EPA ASSESSMENT 29 



Page 7 Negotiated Rulemaking 



Even where consensus has not been achieved, at least some participants thought 
the negotiations were beneficial in terms of conmunication. Five people who 
represented environmental groups in the abortive negotiations on Underground 
Injection of Hazardous Waste conmented: 'We believe that the negotiations have been 
worthwhile, have increased understanding of the issues and of the various parties' 
perspectives, and have stimulated conmunication among all involved' [6] . Regarding 
the same undertaking, the president of the Chemical Manufacturers Association (CMA) 
said that OBV's Underground Injection Control Task Group 'believes the process was 
extremely productive in facilitating an exchange of technical information' [7]. 

FINDING bP. 3 ; Develop ing proposed rules through negotiation has made final 
rulemakin g pasipr and less costly. 

Going from proposed to final rulemaking has been easier and less 
resource-intensive than it ordinarily is. This was true in the NCP. Pesticides 
Einerqency Exemptions, and WOodstoves NSPS rulemakings. For the Woodstoves NSPS, the 
Office of Air QueQity Planning and Standards will spend about one-half as much time 
and money as it ordinarily would expect to spend for additional data collection and 
analysis in order to respond to public conments; this represents a saving of about 
$150K. Even more significant is the fact that final rulenaking will be completed on 
schedule, which is not often the case with EPA rulanakings. Based on the Woodstoves 
NSPS experience, it appears that it is easier to obtain EPA management concurrence 
in a negotiated rule than in one developed through the conventional process. 

FINDING ND. 4: Working relationships developed during negotiations have 
hel ped some of the participants work together constructively in other situations . 

TVo of the participants in the RCRA permit modifications effort — one who 
represented a public interest law firm and one who represented a chemical 
company — are working together to find a mutually satisfactory means of enabling the 
chanical company to undertake an activity that the public interest law firm 
ordinarily would have opposed. 

Participation in the Woodstoves NSPS negotiations has helped Oregon officials 
improve their relationships with woodstoves manufacturers and thus enabled them to 
implement the State's woodstoves standards more easily. 

Itie Nonconformance Penalty negotiations helped pave the way for a recent 
agreement among EPA. environmental groups, and automobile manufacturers on 
temporarily relaxing particulate emission standards while the manufacturers develop 
new control technology that will enable them to meet standards more stringent than 
those originally contemplated. 



(61 Letter dated May 4, 1987 to Michael Cook, Director of EHV's Office of Drinking 
Water from representatives of the Natural Resources Defense Council, the Kern 
County Valley Action Network, the Environmental Task Force, the Legal Environmental 
Assistance Foundation, and Environmental Policy Institute. 

(7] Letter dated May 29, 1987 to the EPA Administrator from Robert A. Roland, 
president of the Chemical Manufacturers Association. 



30 WHAT IS NEGOTIATED RULEMAKING? 



Page 8 Negotiated Ruleniaklng 



FINDING NO. 5 ; Ex perience thus far has reaffinned the basic premise 
underlying EPA's pilot-project, i.e.. th at negotiated rulemaking would be useful in 
selected situations . Negotiated rulemaking is an appropriate, and potentially 
effective, means of formulating regulatory policy in some situations. PED's 
conclusions regarding the circumstances under which negotiated rulemaking works best 
are presented in the next section. The following 'administrative' factors also 
affect the frequency with which negotiated rulemaking can be undertaken: 

- Negotiated rulemaking is labor-intensive and thus can be burdensome not 
only for EEA but also for environmental groups, some trade associations, 
and States. EPA managers who have been the Agency's negotiators have 
devoted far more time to the negotiations in which they were involved than 
they ordinarily would spend on a single rulemaking effort. In one case 
(the NCP negotiations) , a division director and two branch chiefs put in 
significant time. 

- Coordination within EPA and with the Office of Management and Budget (0MB) 
(8] is more critical in negotiated rulemaking than in conventional 
rulemaking, because the negotiating conmittee must be confident that the 
EPA negotiator is speaking for the Federed Government. *nus coordination 
process must keep up with (and not delay) negotiations; if Federal 
agencies delay negotiations in order to coordinate, they can heurdly expect 
other participants to stick to established schedules for negotiations. 
This far. coordination has not caused any delays. 

- Negotiated rulemaking generally will not enable EPA to cut back on 
pre-proposal data-collection and analysis. EPA cannot depend on other 
participants to provide eill the needed data, especiedly not on matters 
such as health and environmental risks. In the Woodstoves NSPS case, 
however. QAQPS was able to forego some data-collection and analysis, but 
the resource savixvg was small. QftOPS still spent more than $1 million 
gathering and analyzing data before the negotiations began; indeed, the 
fact that so much work had been done in advance was critical, because it 
enabled the O^PS staff to evaluate what participants were saying and to 
respond to questions about techniccd and economic issues. 

- Negotiated rulemaking heightens people's expectations and therefore is 
sensitive to 'upsets.' Failure to reach consensus, particuleirly if 
negotiations are contentious, may leave participants disappointed and 
may worsen EPA's relationships with some of them. 

- Non-profit groups may be at a greater-than-usual disadvantage in terms of 
access to expertise. Ttiey ordinarily do not have large 'in-house' staffs 



[8] Under Executive Order 12291, CMB has authority to review EPA's rulemaking 
activities. In conventional rxileroaking, CMB review normally takes place after the 
;^ency has developed, but before it has published, proposed or final rules. In 
negotiated rulemaking. EPA's comoitment to basing pressed rules on consensus 
recoomendations from a negotiating conmittee means that consultation with 0MB must 
take place during negotiations. OMB analysts have been present as observers at many 
negotiated rulemaking sessions but they usually have not taken part in the 
discussions. PCD saw no indication that OMB's role in review of negotiated 
rulemaking proposcils has differed from its role in conventional rulemaking. 



EPA ASSESSMENT 31 



Page 9 Negotiated Rulemaking 



of techniccLl experts. To get expert assistance in responding to 
conventional rulemaking proposals, they often send materials to experts 
who review then in their own homes or offices and send back written 
cotnnents. Non-profit groups cannot ordinarily afford to hire many experts 
to accoiqpany than to negotiation meetings (as industry groups can) . This 
disadvantage can be overcome to some extent by eillowing non-profit groups 
to use the resource pool (created for each negotiated rulemaking) to bring 
appropriate consultants. 

FINDING ND. 6 ; Ml affected interests gpnerally have hpf>n idpntified and 
represented . As a practical natter, affected interests must be organized in-order 
to have an opportunity to participate in negotiations. Within this limitation. 
FED noted only two instances in which affected interests were not fully 
represented: 

- In the Woodstoves NSPS negotiations, nobody representing truly small 
woodstove manufacturers was involved. EPA had identified someone to play 
this role, but his coiqpany went out of business before the negotiations 
began. 

- In the Asbestos case, representatives of States' Attorneys-Generals' 
offices in litigation with asbestos product nanufacturers did not become 
involved in the negotiations until the process was well underway. 

FINDING N3. 7: EPA has based its selections of rulemakings for negotiation 
partly on the existing selection criteria and partly on Program Managers' 
•jud^nents . 

■Rie Agency's first seven choices of rulemakings for negotiation reflect varying 
degrees of reliance on the selection criteria, tenured in some cases by Program 
Manager's judgments that negotiations would be worthwhile even though full consensus 
might not be achieved. 

- In all instances, there has been a relatively large number of issues to be 
resolved, but that has been a real impediment only in the Asbestos 
negotiations, in which time limitations, as well as a large number of 
issues, made the process extremely difficult. 

- There were action-forcing mechanisms in nearly all cases (e.g. , deadlines 
established to settle litigation in Non-conformance Penalties and 
woodstoves NSPS; statutory deadlines, coupled with 'hammer' provisions, in 
Underground Injection of Hazardous Waste and Asbestos; concern about 
possible 'gridlock' in review of ROW^ permit modifications). Only in the 
Farmworker Protection case was there no effective action-forcing 
mechanism; EPA had set a deadline for completing negotiations, but missing 
the deadline had no unacceptable consequences for any of the 
participants. 

In both the Famworker Protection and Underground Injection of Hazardous Waste 
cases, the EPA Program Managers who initiated the negotiations recognized that there 
were serious obstacles to achieving full consensus. In both instances, however, 
they believed there were good reasons to proceed, including the possibility of 
reaching consensus and/or bringing the parties closer together on some issues and 



I 



32 WHAT IS NEGOTIATED RULEMAKING? 



Page 10 Negotiated Rulenaking 



the c^jportunity to learn more about 'real world' conditions relevant to the 
rulemaking. Similarly, in the Asbestos case, the Program Managers recognized the 
risk that consensus would not be reached, particularly because of the limited time 
available and the large number of issues, but they made a judgment that negotiations 
would nevertheless be worthwhile, since the process would involve many of the same 
groups that had worked together during Congressional consideration of the underlying 
legislation. 

Section 6 . CXiestions not answered bv this study 

?ED could not answer two of the questions that have been raised about EPA's 
negotiated rulemaking activities: 

- Whether it results in a net saving of E PA resources could not be 
determined, and. perhaps, can never be determined, because the Agency does 
not keep records of its resource utilization separately for each 
rulemaking effort; EPA generally has no need for such detailed data. 
Based on this study, it appears that pre-proposal costs are reduced 

only slightly, if at all. If, however, final rulemaking is easier, there 
may be some savings. If litigation is avoided, and if affected 
industries' acceptance of the rulemaking produces a high degree of 
voluntary compliance, all parties may reap substantial savings. 

- Whether th e risk of litigation is reduced will be difficult to determine 
until EPA has completed final rulemaking in several more cases. T\\ece has 
been no litigation dealing with the first two negotiated rulemaking 
efforts (and litigation on the WOodstoves NSPS seems unlikely) , but it 
obviously is iirpossible to predict what will happen with respect to 
those cases in which rulemaking has yet to be completed. Even where there 
is litigation, it seems possible that negotiations will have reduced the 
number of issues to be decided. 

Section 7 . General observations— Pro and con 

In addition to answering PED's questions about the seven negotiating rulemaking 
efforts in which they were involved, many interviewees offered some general 
observations about the negotiated rulemaking process. 

EPA managers 

EPA managers who have served as the Agency's negotiators think negotiated 
rulemaking is worthwhile. Even those who were involved in negotiations in which 
full consensus was not achieved believe the Agency obtained valuable information and 
brought opposing 'sides' closer together. 

- They said they would be willing to do it again — given appropriate 
rulemaking situations — provided that their personal time investment can be 
limited. 

- Office Directors, in particular, said they cannot routinely devote so much 
of their time to a single rulemaking activity, but they recognized the 
importance of personal involvement at the outset and accessibility 
throughout the process, especially when major issues are being addressed. 



EPA ASSESSMENT 33 



Page 11 Negotiated Rulemaking 



Other participants 

Many of the non-EPA participants indicated that they like negotiated rulemaking 
because they believe it provides unique opportunities to have direct dialogue with 
EPA decision-makers [9]. to hear other parties' concerns and explain their own. and 
to present data and arguments before an EPA proposal polarizes the interested 
parties. 

On the other hand, many non-EPA participants have reservations about negotiated 
rulemaking. 

- Pressure to reach consensus makes many people uncomfortable. Some 
interviewees expressed concern that negotiations could result in 'weaker' 
regulations. Others took the opposite view — that negotiations may force 
regulated industries to make concessions and accept restrictions they 
would resist in conventional rulemaking. [10] 

- Soroe interviewees took the position that 'anything' could be negotiated, 
but most raised questions about the appropriateness of negotiated 
rulemaking in certain situations (e.g., those involving 'life and death' 
issues [10] ) . 

- Many interviewees voiced at least some concern about the time required for 
participation in negotiated rulemaking. An official of one trade 
association noted that even though he works for a large organization, he 
is the only person working full-time on environmental issues and therefore 
cannot afford to become involved very often in negotiated rulemaking. 
Staff members of environmental groups and other organizations have similar 
concerns. 

- Several interviewees wondered what role 0MB plays in negotiated rulemaking 
and how EPA interacts with OMB; people who raised such questions usually 



[9] "Hiere is an apparent inconsistency between top managers' desire to limit the 
time they spend at the negotiating table and other negotiators' preference for 
talking directly with EPA decision-iiakers. Subordinate officials may be able to 
substitute successfully for top managers if the subordinates are, in fact, involved 
in dealing with the issues being discussed and are perceived (by other negotiators) 
as having the EPA negotiator's confidence. 

flO] In an article that appeared August 3, 1987. in Legal Times . EPA's use of 
negotiated rulemaking was attacked on the ground that the Agency uses this approach 
to 'strike deals' among the interested parties without regard to statutory 
requirements. The authors, Rena Steinzor and Scott Strauss, were not among the 
people PED interviewed. Mr. Strauss was a participant in the Asbestos 
negotiations. None of the people PED interviewed expressed such views. 

[101 Ttiis characterization came not from an interview but from a memorandum prepared 
by David Doniger of the Natured Resources Defense Council and dated November 15, 
1983, in which he asked staff members of other environmental groups to suggest 
tc^ics appropriate for negotiated rulemaking. 



34 WHAT IS NEGOTIATED RULEMAKING? 



Page 12 Negotiated Rulemaking 



added that they assumed (correctly) that EBA-OMB coordination was taking 
place even though it was not visible to them. 

Section 8; Conclusions 

E&i's experience thus far suggests that negotiated rulenaking will work best 
(i.e., most likely result in consensus on proposed rules) when all or most of the 
following conditions exist: 

- Rulemaking involves ' second-tier' rules affecting program 
inplementation — rather than rules establishing program structure. The 
RCRA Permit Modification and Non-conformance Penalty rules are excellent 
examples of 'second-tier' rules. 

- Rulemaking does not involve ar>y extremely controversial national policy 
or coirplex multi-inedla issues. How to define 'no migration' from 
hazardous waste injection wells was just such an issue. Rules setting 
national standards often will involve extremely controversial issues. Ihe 
Woodstoves NSFS rulemaking did not; in addition, it related only to air 
quality. 

- Ihe principal parties have (or can reasonably be expected to agree upon) 
cnnrnon goals . Fy>r example, participants in the RO^ rulemaking were 
united in wanting to reform the process for review of permit 
modifications; participants in the Woodstoves NSFS rulemaking all 
supported the adoption of national standards; and participants in the 
Non-conformance Penalty rulemaking were all interested in promoting 
conpliance (rather than in making non-coqpliance cheap) . 

- The policy impli rat-inns of the issues to be resolved are more-or-less 
limited programatically, i.e., the rulemaking will not establish 
precedents that will be binding in program areas not encoirpassed by the 
negotiations. Itiis was a problem in the case of Underground Injection of 
Hazardous Wastes. 

- Where complex scientific and technical issues must be resolved, the 
necessciry data should be readily available . While negotiators may bring 
some relevant data to the table, negotiated rulemaking is certainly not 
the only way, nor is it necessarily the best way, to obtain data, 
especially detailed scientific and technical data en the nature and extent 
of he2Llth and environmentcil risk and on the technologiccd and economic 
feasibility of edtemative solutions. 

- ongoing litigation should be carefully analyzed to ensure that it will not 
affect participants' willingness or ability to engage in genuine 
give-and-take. In the Asbestos rulemaking, representatives of the parties 
involved in litigation could not accept an outcome that would prejudice 
their case. 

- Itie timp available fo r negotiations is adpqiiatp . PED has concluded that 
the length of intervals between negotiating meetings is the best measure 
of the adequacy of time for negotiations. It must be long enough to allow 
participants to digest and reflect on what has taken place, to talk to uie 



EPA ASSESSMENT 35 



Page 13 Negotiated Ruleniaking 



another infonnally (if they wish), to consult the groups they represent, 
and to prepare for upcoming meetings. In most of the negotiated 
rulenakings EPA has undertaken, this interval generally has been four 
weeks, vriuch has been ad£<]uate. In the Asbestos rulemaking, meetings were 
held every two of three weeks, in an effort to meet a statutory deadline; 
this haste may have been a factor contributing to the ambiguous outcome of 
the negotiations. 

Whether 'acceptable risk' issues are involved is another factor to be 
considered when EPk is deciding whether to undertake negotiated rulenaking. The 
more ijnportant it will be to choose an 'acceptable risk' level, the more difficult 
it will be to reach consensus; indeed, where 'acceptable risk' is a central issue, 
many interested parties may be unwilling to negotiate. 

Section 9 ; Regonrnendatioaa 

Negotiation is appropriate and potentially fruitful in some of EXA's 
rulemaking efforts. 

Deciding when negotiated rulemaking would be particularly useful is obviously 
the key. Toward this end, additional criteria based on FED's conclusions as to 
'Where it works best' could be helpful. But EBA cannot depend solely on selection 
criteria. Even where all or most criteria are met. consensus will not necessarily 
be achieved. EEA's top managers still will have to make judgment calls about the 
selection of candidates for negotiated rulemaking. 

Because negotiated rulemaking is a highly visible process, and because 
an agreement (in advance of negotiations) to base a rulemaking proposal on the 
consensus achieved by a negotiating comnittee is binding on the Agency, either the 
Ackninistrator or Deputy Adninistrator should continue to be involved in decisions to 
negotiate. An elaborate decision-making process is not necessary, but the 
Adsinistrator or Deputy Adninistrator should at least be made aware of: 

- The extent to which the rulenaking in question meets whatever selection 
criteria the Agency is using 

- Ihe risk of not achieving the objectives of any negotiated rulemaking 
effort 

- Whether any alternative procedures would be more likely to meet the 
objectives 

- The likely consequences of failure to reach consensus 

- Whether satisfactory arrangements have been made for coordination within 
EEA and with other Federal agencies 

In short, negotiated rulemaking is likely to be worthwhile where the conditions 
for succ es s seem to exist and where EPk managers and other interested parties are 
able and willing to devote the necessary time and energy. 



B 



CHAPTER 2 - WHEN TO USE NEGOTIATED 
RULEMAKING 

Evaluating a Rule's Suitability for Negotiated Rulemaking 

Not all rules are suitable for negotiated rulemaking, and the 
criteria for a good candidate may vary from one program to another 
in the federal government. The reasons to negotiate a rule may 
derive from a desire to reduce litigation or contentiousness, or from 
a desire to increase public participation in particular rulemaking 
proceedings. 

As a prerequisite to establishing a negotiated rulemaking 
committee, the Negotiated Rulemaking Act requires a determination 
by the agency head that the use of the procedure will be in the 
public interest. The Act lists several considerations for making this 
determination: (1) a need for the rule; (2) a limited number of 
identifiable interests that will be significantly affected; (3) a 
reasonable likelihood that an appropriately balanced and 
representative committee can be convened whose members are 
willing to negotiate in good faith to reach a consensus; (4) a 
reasonable likelihood of reaching a timely consensus; (5) the 
process will not unreasonably delay the issuance of the rule; (6) the 
agency will commit adequate resources; and (7) the agency will 
commit to publishing any resulting consensus as a proposed rule. 
(See 5 U.S.C. §563, reprinted in chapter 3.) 

These basic statutory considerations may be supplemented by a 
number of additional conditions that should guide the agency in 
deciding whether reg-neg is appropriate in a particular instance. 
(See Administrative Conference Recommendation 82-4 in the 
appendix to chapter 1; and Barter, Negotiating Regulations: A Cure 
for Malaise, in chapter 13.) The following list is taken from 
testimony on S. 1504 by Philip J. Harter, before the Senate 
Committee on Governmental Affairs, May 13, 1988: 



37 



•f 




38 WHEN TO USE REG-NEG 



• A limited number of interests will be significantly 
affected, and they are such that individuals can be 
selected to represent them. A rule of thumb is that no 
more than twenty-five people would have to participate at 
any one time, although each interest may be represented 
by a caucus or "team." Discussions can become unwieldy 
if there are many more than that. While this may seem 
nice a small number and hence a significant limitation, 
only a few parties play the significant roles in most major 
rulemakings. The process would not be appropriate, 
however, if a major interest is not sufficiently organized 
so that a representative can be selected. (Note that 5 
U.S.C. §565(b) specifies a maximum of 25 members 
unless the agency determines that a larger number is 
necessary.) 

• The issues are known and ripe for decision. The 

parties would not likely grapple with issues that are only 
emerging and are neither well defined nor imminent for 
decision. Thus, the matter must be sufficiently developed 
so the participants can focus on relatively well crystallized 
issues: it is on the action agenda. 

• No party will have to compromise a fundamental 
value. Negotiations are not appropriate if a party would 
be required to violate something it holds as a fundamental 
precept. While the issues presented for agreement can be 
major and important, if they rise to the level of faith, 
agreement is unlikely. Such issues need to be resolved in 
some other forum. 

• The rule involves diverse issues. The parties will 
likely not agree if only one issue is presented. The 
advantage of negotiations is a type of "Jack Sprat" 
rulemaking -- what may be critical to one party may well 
not be so important to another. Thus, the parties can rank 
the issues according to their respective needs and priorities 
and thereby attempt to reach an accommodation. Doing so 
requires that the rule in question raise a range of issues or 
approaches. 



WHEN TO USE REG-NEG 39 



• The outcome is genuinely in doubt. If a party has 
the raw power -- through political influence, a 
commanding position on the relevant facts, or bargaining 
strength -- to dictate the results of the proceeding, it 
would likely be inappropriate to use a consensus process. 
Those without direct power would generally need the 
formal structure of the rulemaking process to protect their 
interests or to alter the relative power balance. If, 
however, there is sufficient countervailing power so that 
no party can achieve its goal without incurring a sanction 
it views as unacceptable, the process would be a suitable 
way of reconciling those positions and avoiding the 
impasse. 

• The parties view it as in their interest to use the 
process. Negotiation is a voluntary process parties engage 
in because they believe they will be able to achieve more 
by doing so as opposed to using some other means to 
pursue their desires. A party that feels forced to the table 
may go through the motions of participation, but it will 
likely not be a full, creative participant and may take 
actions subsequently to attempt to scuttle the product of 
any discussions. 

• The agency is willing to use the process and 
participate in it. Experience shows rather dramatically 
that any agency can find creative ways to sabotage a 
process it does not like. Thus, even if the private groups 
met and developed a recommendation, the agency may 
well reject it as a result of the "not invented here" 
syndrome or a concern that the "proper" balance was not 
struck. . . . [T]he agency must believe the direct 
discussions are an appropriate way to develop the 
proposal. Moreover, a senior official, generally the one 
who would be responsible for developing a draft rule 
inside the agency, should participate as a full member of 
the negotiations so that the agency's views can be 
incorporated in the deliberations and the agency feels a 
part of it. 



B 



a 



40 WHEN TO USE REG-NEG 



The following important factors may be added to the foregoing list: 

• No one interest should be able to dominate the 
proceeding. All participants must feel that their 
concurrence in any agreement is essential. 

• There should be a deadline for achieving consensus. 

A reasonably firm deadline for conclusion of negotiations 
will help the participants to keep moving toward a 
resolution at an efficient pace. The deadline may be 
externally imposed by statute or court order, or may be set 
by the agency. 



From the time the Administrative Conference adopted its initial 
reg-neg recommendation in 1982 through mid- 1995, approximately 
50 negotiated rulemaking proceedings have been undertaken by 
federal agencies. Each agency has applied the above conditions in 
its own way to select appropriate rules, sometimes with additional 
conditions. The Environmental Protection Agency decided very 
early to institutionalize its negotiated rulemaking program and 
drafted its own selection criteria, which are included in the 
appendix. Approximately one-third of federal negotiated 
rulemaking proceedings have been conducted by EPA. 



How Is Negotiated Rulemakin;; Proposed? 

How does a rule come to be considered for negotiated 
rulemaking? Proposals may originate with agency staff, external 
affected parties, or by congressional direction. The Administrative 
Conference believes that regulatory agencies usually should 
determine whether to use negotiated rulemaking in particular cases. 
(See Recommendations 82-4 and 85-5 in the appendix to chapter 1.) 
In some instances, however. Congress has made this judgment and 
has mandated use of reg-neg. Agencies affected by such legislation 
include the Nuclear Regulatory Commission and the Departments of 
Education, Health and Human Services, Housing and Urban 
Development, and the Interior. (See chapter 10 for information 
about individual reg-negs that have been required by statute.) 

The first EPA negotiated rulemaking proceedings were selected 
after the agency solicited suggestions from the public through a 
Federal Register notice and other efforts (see appendix). EPA 
published a similar notice again in December 1988. A few other 
agencies have also issued such invitations to the public to suggest 



WHEN TO USE REG-NEG 41 



candidates. Some reg-negs have come from unsolicited proposals 
received from industry or public interest groups that wanted to 
increase the effectiveness of their participation in the drafting of a 
rule. Some rules have been identified by agency rulemaking staff or 
management interested in augmenting in an organized way their 
normal process for consultation with the regulated community. 
This has occurred, for example, in connection with efforts of the 
Clinton Administration and the National Performance Review 
directed toward increasing public participation in governmental 
activity. 

Only one agency, EPA, has institutionalized negotiated 
rulemaking with a full time staff to evaluate candidates and manage 
the process. EPA's Consensus and Dispute Resolution Program, 
located in the Office of Policy, Planning and Evaluation, is 
responsible for a systematic evaluation of rules under development 
for possible negotiated rulemaking. Program staff members make 
recommendations to the rulemaking staff with regard to the 
appropriateness of particular rules for negotiation. When evaluating 
a rule, EPA considers a broad spectrum of public consultation 
processes, not just negotiated rulemaking. The Program also 
provides staff and contract assistance to rulemaking offices in 
setting up and managing negotiated rulemaking proceedings. 



A ppendix 

The appendix contains EPA's criteria for selection of cases for 
which negotiated rulemaking will be used. Also included are 
documents illustrating two approaches to generating nominations of 
candidate regulations for reg-neg -- a letter from John McGlennon 
seeking suggestions from a targeted audience, sent on behalf of 
EPA, and a notice that EPA placed in the Federal Register 
requesting such information from the general public. 

For further discussion of alternative methods of building a 
consensus, refer to the document in the appendix entitled 
"Discussion on the Use of Consensus-Building Processes for 
Implementing the Clean Air Act of 1990," prepared for EPA by the 
Keystone Center. 



d* 




42 WHEN TO USE REG-NEG 

EPA REGULATORY NEGOTIATION CANDIDATE 
SELECTION CRITERIA 

It is important to screen potential rulemakings to identify instances where 
negotiation of the rule has a high probability of successful use. The Regulatory 
Negotiations Project uses the following criteria to screen and select appropriate items. 
We developed them based both on a thorough review of the considerable literature on the 
use of negotiations to resolve a wide range of environmental disputes and on a careful 
analysis of instances in which regulatory negotiations have been used. An item need not 
meet all of these criteria to be qualified as a candidate. 

Criteria for the Item 

O The proposal should require the resolution of a limited number of 

interdependent or related issues, none of which involve fundamental 
questions of value, or extremely controversial national policy. Rulemaking 
that involves 2nd tier, "how-to* implementing rules may be more likely to 
be successful. 

The policy implications of the issues to be resolved are more-or-less limited 

programmatically, i.e., the rulemaking will not establish binding precedents 
in program areas not encompassed by the negotiations. Complex multi- 
media issues may be difficult to resolve. 

There must be a sufficiently well-developed factual base to permit 

meaningful discussion and resolution of the issues. 

o There should be several ways in which the issues can be resolved. 

o There should be a firm deadline imposed upon the negotiations by EPA 

due to some statutory, judicial or programmatic mechanism. The deadline 
should provide adequate time for negotiation of the issues. 

Criteria for the Participants 

o Those participants interested in or affected by the outcome of the 

development process should be readily identifiable and relatively few in 
number. Participants should be able to represent and reflect the interests 
of their constituencies. 

o The parties should have some common goals. They should be in good faith 

about wanting to participate in negotiations. They should feel themselves 
as likely, if not more likely, to achieve their overall goals using 
negotiations as they would through traditional rulemaking. 

o Some of the parties should have common positions on one or more of the 

issues to be resolved which might serve as a basis for agreement during the 
course of negotiations. 

The parties should view themselves as having an ongoing relationship with 

the Agency beyond the item under consideration. 

o Any ongoing litigation does not inhibit the parties' willingness or ability to 

engage in genuine give-and-take. 



EPA REG-NEG PROJECT 



43 



48 Fed. Reg. 7494 (Feb. 22, 1983) 



(OPRM-FRL 2310-11 



Regulatory Negotiation Project 

This Notice announces that.the 
Environmental Protection Agency is 
beginning a "Regulatory Negotiation" 
project. Regulatory negotiation may 
provide an alternative to our traditional 
adversary rulemaking procedures — an 
alternative that better conserves time 
and resources and minimizes costly 
litigation. 

The purpose of the project is to test (1) 
the utility and value of developing 
regulations by "negotiation", (2) the 
types of regulations which are most 
appropriate candidates for negotiated 
rulemaking, and (3) the procedures and 
circumstances which foster the most 
effective negotiations. 

Readers are invited to suggest EPA 
regulations as candidates for Regulatory 
Negotiation. In preparing their 
suggestions, readers should refer to the 
selection criteria found at end of this 
announcement. Send your suggestions 
by (30 days from the date of publication) 
to: Chris Kirtz. Director. Regulatory 
Negotiation Project. U.S. Environmental 
Protection Agency. 401 M Street, SW. 
(PM-223), Washington. D.C. 20460, (202) 
382-7565. 
Joseph A. Caixoon. 

Associate Administrator for Policy and 
Resource Management 

Regulatory Negotiation Pioject 
Description 

Introduction: EPA is beginning a 
demonstration project to test an 
approach to rulemaking that is 
frequently referred to as "Regulatory 
Negotiation". For two selected rules, the 
project will use face-to-face negotiations 
among interested parties in place of 
EPA's usual regulation development 
process. In each case, the goal of the 
negotiations will be a Notice of 
Proposed Rulemaking that reflects a 
consensus on how to address the 
environmental problem presented. 



The impetus for the project is the hope 
that there are more efficient ways to 
regulate than the current adversarial 
system of rulemaking. The project will 

7495 

explore whether negotiation at this early 
stage of nilemaking can produce rules 
more quickly, less expensively, and with 
less likelihood of litigation. 

Request for Suggestions: We invite 
interested parties to suggest EPA items 
for negotiation, using the attached 
selection criteria to help identify topics 
that are likely to be negotiable. After 
considering the suggestions from outside 
parties together with those from within 
EPA. we will select two rules to develop 
by negotiation during the project 

Project Design 

Management: The Regulation 
Management Staff (RMS) designed the 
project and will administer it on EPA's 
behalf. RMS is a part of the Office of 
Standards and Regulations in the Office 
of Policy and Resource Management and 
is responsible for managing the 
regulation development process. 

Participants: A person designated by 
the lead program EPA office with line 
responsibility for developing the 
regulation (supported by a small EPA 
negotiating "team") will actually 
negotiate as a party-in-interest for EPA. 
As would any party to a negotiation. 
EPA representatives will work closely 
with their management to assure that 
they accurately represent the Agency. 

Parties to a particular negotiation will 
be a function of the rule selected and the 
interests affected by the possible results. 
Parties representing legitimate and 
definable interests are appropriate to 
negotiate on behalf of their 
constituencies. Every effort will be made 
to identify these parties and bring them 
to the table. 

Procedures: Apart firom the procedural 
rules the parties themselves agree to. the 
negotiations will be conducted as an 
Advisory Committee function under the 
Federal Advisory Committee Act 
(FACA). An Advisory Committee 



B 



44 



WHEN TO USE REG-NEG 



P 



Charter has been prepared and %vill be 
filed with the appropriate bodies. Under 
the provisions of FACA. certain 
meetings may be closed to non- 
members. These provisions will be used 
where the law allows and the parties 
agree on the need for confidentiality to 
carry on the negotiations. 

It is important to note that 
negotiations are a step in the "informal 
notice and comment" administrative 
procedures EPA uses presently. 
Participation by itself does not involve 
the waiver of a party's right to pursue 
any alternative to negotiation, including 
litigation, at any time before or after 
EPA issues a final rule. 

Outside Support During the first 
negotiation, a contractor experienced in 
using third-party intervention 
techniques to resolve environmental 
disputes will assist EPA in selecting a 
topic, identifying the parties, and 
conducting the negotiation itself. The 
contractor will work with the Regidation 
Management Staff to move the 
demonstration along, and to enable that 
staff to perform its third-party role for 
the second negotiation. 

Documentation: Documenting this 
demonstration project is extremely 
important The demonstration will 
produce valuable information both 
generally on developing regulations by 
negotiation and more specifically on 
conducting the negotiations themselves 
in the context of Federal rulemaking 
EPA has engaged the Harvard 
Negotiation Project to design an 
information gathering/dociunentation 
system that will allow us to capture all 
this Information without disrupting the 
negotiation process under study. 

We anticipate that the project Mrill 
take a year or so to complete and we 
then plan to publish and distribute a 
report summarizing our findings and 
conclusions. 

Selection Criteria: Because 
negotiation is not suitable for every 
situation, it is important to screen 
potential rulemakings to identify where 
this approach has a high probability of 
success. A few. simple criteria that 
predict the existence of a number of 



preconditions conducive to successful 
negotiations can be applied when 
selecting those topics. 

These criteria were developed after a 
thorough review of the considerable 
literature on the use of negotiation to 
resolve a wide range of environmental 
disputes. 

About the Regulation 

• The proposal requires the resolution 
of a reasonably limited number of 
interdependent or related issues. 
There are several ways in which the 
issues can be resolved. The relevant 
legislation accommodates these 
alternative outcomes. There are no 
serious obstacles to implementing a 
negotiated solution. 

• There is a legislative or judicially 
imposed deadline or some other 
mechanism forcing publication of a 
rule in the near term. i.e. 8 to 12 
months, that would promote a timely 
resolution, and limit a party's abiUty 
to gain from delay. 

• Some or all of the parties have 
common positions on one or more of 
the issues to be resolved that might 
serve as a basis for additional 
agreements during the course of 
negotiations. 

• The costs and benefits are narrowly 
concentrated on a few entities. 

About the Parties 

• Those parties interested in or affected 
by the outcome of the development 
process are readily identifiable and 
reasonably few in number (10-15). 
They have sufficient resources to take 
an active role in negotiations. They 
have relatively equal power to affect 
the outcomes. 

• The psurties are likely to participate in 
negotiations as an alternative to 
litigation. They are more likely to 
achieve their overall goals using 
negotiation rather then existing 
alternatives. 

|FR Doc 8J-437B riled 2-18-S3: K«S wn) 
BIUJNO COOC MM-6(MI 



McGLENNON LETTER 



45 




B 



Clark-McGlennon Associates, Inc. 

1/18 Slnlo SIrool 
Bos I on, MA 02109 

(617) 742 1580 



February 16, 1983 



Mr. Alan Morrison 
Public Citizen Litigation Group 
2000 P Street, NW 
Washington, DC 20036 

Dear Alan: 

The U.S. Environmental Protection Agency has recently 
retained Clark-McGlennon Associates to assist in a unique 
demonstration project using negotiation in the development of 
regulation. Clark-McGlennon Associates is a Boston-based 
governmental consulting firm specializing in environmental 
conflict management. The project will test whether and under 
what conditions negotiation can be used in regulation 
development. A more detailed description of this undertaking is 
contained in the enclosed Project Description. 

The project is an important one that would allow EPA to 
gather information which may positively affect future rulemaking 
procedures. It is my hope you will see this as an opportunity to 
work collaboratively with the EPA on what promises to be an 
exciting project. 

An important first step is to identify candidate regulations 
which may be appropriate. Clark-McGlennon Associates is 
therefore contacting organizations like yours that are frequently 
involved in the development of regulations to solicit your 
suggestions. In particular, we would like to encourage your 
organization to suggest one or more regulations for 
consideration. This could be a regulation which is to be 
proposed or an amendment to an existing regulation. We have 
prepared a simple form (attached) to assist you with this. 
Factors that you should consider in suggesting candidate rules 
include: 

• there are a manageable number of issues and parties 

• there is a deadline for the development of 
the rule 

• the key parties are likely to participate in a 
negotiation process in good faith 

(More detailed selection criteria are presented in the Project 
Description.) 



46 



WHEN TO USE REG-NEG 




Page Two 



Approximately two weeks after your receipt of this letter 
Peter Schneider, a Senior Associate at Clark-McGlennon, or I will 
call you to answer any questions you might have and discuss 
candidate rules. Thank you in advance for your participation. 



Sincerely, 




JASM:jth 



enclosures: 



Project Description 
Candidate Rule Form 



Ckiric-McGlannon AmocIqIm, Inc. 



McGLENNON LETTER 47 

E£h REGULATORY NEflOTTATION PROJECT 
CANDIDATE RULE 

When suggesting a rule for consideration, bear in mind the 
rule selection criteria in the Project Description. 



B 



Brief Description of Rule: 



Why Is This Rule Important to Your Organization? 



Which Parties Are Involved/What Are Their Interests? 



Are the Parties Prepared to Bargain in Good Faith ror Consensus 
at This Time? 



Other Comments or Suggestions: 



Completed byj 



Name 



Address 



Phone 

Send completed forms to: Clark-McGlennon Associates 

148 State Street 
Boston, NA 02109 
(617) 742-1580 



I 



48 WHEN TO USE REG-NEG 

Discussion 

on the 

Use of Consultation and Consensus-Building Processes 

for Implementing the Clean Air Act of 1990 

Office of Air And Radiation 
U.S. Environmental Protection Agency 



(Prepared for EPA by the Keystone Center) 



Revision Date: March 4, 1992 



CONSENSUS-BUILDING 49 



I. Introduction 

The purpose of the enclosed materials is to describe se\eral alternative approaches 
for consulting with external interests as EPA develops regulations that implement the Clean 
Air Act. All approaches assume that the overall goal of the rulemaking process is to 
produce rules that are not only technically sound, fair, and effective, but have the greatest 
likelihood of being legally defensible and impiementable (thereby achieving environmental 
results in a timely and efficient manner). In order to achieve this goal, EPA should ensure 
that three types of concerns are addressed by appropriate members of the Agency in 
conjunction with each rulemaking effort: 

o Technical: WTiat are the relevant technical issues of concern and ho« can 

they be resolved? 

o Procedural: Wliat potential procedural issues may interfere \\iih 

implementation of the rule? 

o Political: Who has the power to influence or block implementation of a 

proposed rule? How have their concerns been responded to, accounted for. 
or addressed? 

If. at the close of a rulemaking process, significant issues of concern to major 
interest groups remain in any of these three categories, it is more likely that the rule \\\\\ 
not be implemented on time. Therefore, these questions should be carefully considered l)\ 
each member of the EPA rulemaking work group and other appropriate EPA staff, both at 
the outset and at critical junctures in a specific rulemaking effort. 

Assuring that there are adequate answers to all of the questions posed will not 
"guarantee" a positive outcome. There are potential negative consequences to attempting 
some of the processes. For example, some of these processes can consume agency time and 
resources. They can create additional expectations from participants (e.g. that EPA will 
incorporate all of their comments into a proposal). However, answers to the questions 
above should inform the design and outcome of the rulemaking process whether a 
consultation process is pursued or not. 

In Part II below, a description of five parts of the consultation process spectrum is 
provided. In Part III, criteria for selecting an appropriate process are provided. Part IN' 
presents tendencies in the application of criteria to the choice of consultation processes. 
Part V provides a checklist of key factors to be considered before initiating any consultation 
process. The graphics which follow portray how the criteria and tendencies described in 
Parts III and IV can be used by EPA staff to determine which consultation and/or 
consensus-building process may be appropriate for their circumstances. 




50 



WHEN TO USE REG-NEG 





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52 WHEN TO USE REG-NEG 



II. Parameters of Six Consultiition Processes for Implementing the Clean Air Act 

The follouing discussion outlines the parameters of si\ consultation processes, in 
addition to the activities conducted under the Administrati\e Procedures Act. Each of these 
processes should be \ie\^ed as a range of activities, or part of a "spectrum." which m.n\ 
oxerhip with one another. This spectrum" of approaches varies according to three general 
characteristics: 1 ) the degree to which each process involves interactions between EPA and 
each interest group separately or several interests groups at the same time; 2) whether the 
process is a one-time event or a series of discussions and interactions; and 3) the degree 
to which the objecti\e of the process is to exchange information and perspectiNes or to 
dcNeiop consensus solutions. 

EPA, as with all federal agencies, is subject to and must comply with the 
requirements of the Administrative Procedures Act (APA) and the Federal Advisorv 
Committee Act (FACA). A brief description of APA activities is presented below for 
information purposes. Within the spectrum of additional consultation processes, the first 
approach described is "single interest group consultations," which involves meetings w'nh 
representatives of a single interest group. On the other extreme of the spectrum, 
"regulator} negotiations" involve all affected interests in a series of formal negotiation 
sessions aimed at achieving consensus agreements. The middle range includes one-time or 
a series of interactions that have the objective of information exchange, fact-finding or 
consensus-building in relatively less formal settings. When EPA seeks consensual adcvice 
from select groups of experts, EPA will follow FACA the requirements that the Agencv 
obtain a charter, have balanced membership, and announce and conduct the meetings. 
Each process has general characteristics, but should not be viewed as completely separate 
and distinct. Rather, activities could be contemplated that would fall both within and 
between some of the methods described below. 



CONSENSUS-BUILDING 53 



Administrative Procedures Act (A?A)/Public Hearings 

Whiit: Information sharing acti>ities such as publication of significant decisiDiis in 

the Federal Register and conduct of hearings to obtain public commcni prior 
to specific decision points. 

Objective: To provide an opportunity for ail affected interests to formallx submit 
comments on proposed rules. 

Who: Public at-large and representatives of key interest groups. 

When: At specific decision points, as required by APA. 

Role of EPA: Rule proponent, decision maker. 

Example: Any formal public hearing or public comment period that precedes or 

follows issuance of a proposed rule. 

Public Meetings 

What: Information sharing activities such as meetings conducted prior to public 

hearings. Also includes contacts with and inquiries from key affected 
interests, either in small meetings or by telephone. 

Objective: To provide an opportunity for all affected interests to ask questions and 
share concerns. Allows exchange of information with interested and affected 
parties in less formal, one-on-one settings. 

Who: Public at-large and representatives of key interest groups. 

When: Usually prior to formal decision points of the regulatory process. 

Role of EPA: Rule proponent, decision maker. 

Example: Any informal public gathering in which the Agency imparts 

information and receives comments reflecting a lack of consensus on 
an upcoming regulatory or policy action. Any telephone or personal 
consultation with individuals,, or groups not established by the 
Agency. 



54 WHEN TO USE REG-NEG 



Single Interest Group Consultations 

What: One time or a series of meetings, briefings or consultations conducted 

separately with individual representatives of distinct interest groups. 

Objective: To give and receive information with representatives of a single interest 
group; to exchange views, utilize the expertise of external constituencies, build 
trust and improve relationships. 

Who: Selected individual representatives or self-selected delegations of each 

major affected interest. 

When: At beginning of and throughout the regulatory process, as needed. 

Role of EPA: Principal convenor and participant. EPA retains policy /decision making role. 

Example: EPA's Petroleum Refinery Cluster information gathering meetings uith 

industry, states, and environmentai/citizen/labor groups. 

Information Exchange "Fonims"/*Workshops " 

What: One-time events (one to three days in length) involving diverse and balanced 

representation of all affected interest groups. 

Objective: To communicate to interest groups the issues, concerns, and constraints 
facing the agency in the rulemaking; offer an opportunity for informal input 
by each individual interest group; allow each individual interest group to 
hear the perspectives and concerns of other interests; and to allow each 
individual interest group to hear EPA's responses to inquiries from those 
present. EPA does not seek to obtain consensus. 

Who: All relevant interest groups, designated or self-selected, but limited 

representatives for each. Balanced representation. 

When: Topically, early in the regulatory development process. 

Role of EPA: Participant and in some instances principal convenor. EPA retains 
policy/decision making role. 

Example: The Keystone Center's RCRA Reauthorization Forum 



CONSENSUS-BUILDING 55 



•KoiindtahlcsVlnromial 'Policy Dialogues " 

U hat: Ongoing, informal information discussions over regulaton polic> issues \*ith 

designated representatives of affected interests. EPA neither seeks nor 
obtains consensus advice. 

Objective: To give each individual interest group the opportunity to gain information, 
discuss issues, and generate options and alternatives. Other objectives of 
single interest group consultations and information exchange forums may 
also apply. 

Who: All relevant interest groups, designated or self-selected, but limited 

representatives for each. Balanced representation. 

Wlien: At beginning of and during the regulatory decision making process, as 

appropriate. 

EPA Role: Participant and typically the principal convenor. EPA can observe or 

participate in policy dialogues that are convened by outside parties. 
EPA may also use advice and recommendations generated by 
committees established by outside parties (In such cases, FACA ma> 
apply, warranting consultation with the EPA FACA attorney in Office 
of General Counsel). 

Example: Clean Air Act Permits Roundtable, CAA Voluntary Reductions 

Roundtable. 



FACA "Policy Dialogue " 

What: Formal "policy dialogue" that follows the rules of the Federal Advisorv 

Committee Act. EPA's goal on establishing such a committee is to reach 
consensus. 

Objective: In a more formal setting than the above options, obtain advice, sometimes in 
the form of consensus recommendations, on signiHcant policy issues through 
a public meeting process that involves representatives of a balanced group of 
affected interests. Objectives of other processes may apply. 

Who: Designated representatives of all relevant interest groups. 

Representatives may nominate themselves, for each. Balanced 
representation. 

When: At beginning of and at regularly scheduled intervals throughout the 

regulatory process. 



56 WHEN TO USE REG-NEG 



EI'A Role: EPA charters the FACA committee and makes sure all other FaC A 

requirements are met. EPA staff may be a committee member or ma\ 
participate in discussions at the request of the committee. If a 
consensus is achieved EPA should give the highest possible 
consideration to recommendations. 

Example: Acid Rain Advisor} Committee. 



Regulatory Negotiations 

What: Formal negotiations under the Negotiated Rulemaking Act and FACA between 

designated representatives of affected interests aimed at achieving consensus 
agreements on proposed rules. 

Objective: To negotiate consensus agreements on the content of and/or principles to be 
reflected in a particular rule. The agency participates as a party to these 
negotiations and commits to using any consensus recommendations that m;i> 
be reached as the basis of a proposed rule. Other objectives of other 
consultation processes also may apply. 

Who: All relevant interest groups v*ith designated representatives for each. 

Balanced representation. 

When: At beginning of and at regularly scheduled intervals throughout the 

regulatory process. 

EPA Role: Party to the negotiations. EPA retains ultimate policy/decisionmnkinf; 

role. As per requirements of the APA, EPA must be responsi\e to 
comments received on whatever proposed rule emerges from the reg 
neg" process. 

Example: Reformulated/Oxygenated Fuels and Fugitive Emissions Regulatory 

Negotiations. 



III. Assessment Criteria for Selecting Consultation Processes 

Selecting the appropriate consultation method is a critical step toward a successful 
rulemaking effort. The people involved, the broader ramifications of the rule subject 
matter, the technical and political complexity of the effort, the inherent incentives for 
participation by all interested parties, as well as timing and resources, all play a key role 
in choosing the most appropriate consultation method. Below are criteria that managers 
and work group planners should consider in developing a strategy for carrying out their 
charge. 



CONSENSUS-BUILDING 57 



Conlevt 

What is the larger context for the rulemaking? For example, "hal other rules 

may be under discussion \*ith the interested parties? 

How might these or recently completed rulemaking processes efTect the 

viability of using a consultation process in conjunction \*ith the current rule? 



What other goals is the agency trying to accomplish in the given timeframe? 
Are the goals consistent with each other? Are the potential outcomes of a 
consultation process consistent with agency goals? 

Is a consultation process appropriate given the current circumstances (e.g.. 
If parties are likely to litigate regardless of the result of a consultation 
process for the rulemaking, it may not be in EPA's interest to use a 
consultation process to achieve its desired outcome). 

Is EPA internally organized such that it will be able to participate and be 
perceived as a unified team? 



Scope of Issues 



What is the scope of issues that could be addressed in a consultation 
process? Are issues too numerous or too complex to address with multiple 
parties? If not, how can the number and complexity of issues be most 
effectively managed? 

Is technical research or information available that can resolve some questions 
and narrow the scope of issues of concern? 

Do the issues of concern for various parties overlap? Given the scope of 
issues, what consultation process is appropriate to address them? For 
example, some parties may be concerned about certain aspects of a rule while 
other parties have concerns about separate aspects. In this case, single 
interest group meetings may be an appropriate first step in addressing 
parties' concerns. 



Participation 



Who is potentially affected by the regulation and who has the power to 
influence or block the implementation of the regulation -- and therefore ma\ 
be an appropriate candidate for participation in a consultation process? 



10 



58 WHEN TO USE REG-NEG 



For multi-party processes, can representatives or spokespersons of all 
reievant interest groups be identined? 

Can interest groups agree on individuals that can represent them? 

Is the representation of difTerent interest groups balanced? 

Are the number of people contemplated a reasonable number for the process 
under consideration? 

Does the Agency know of any interest groups that may not be aware of a 
particular rulemaking effort or that are aware but do not intend to 
participate? If so, should their participation be encouraged by the Agency? 



Incentives 



Timing 



What are the agency's incentives for conducting a consultation process (i.e. 
what might the agency gain)? 

What is the agency's best alternative to using a consultation process to 
develop legally defensible and implementable rules? Are the alternati\es 
potential!) more benencial or less risky than the proposed process? 
WTiat are the parties' incentives to participate in a cooperative effort with 
EPA? What incentives or disincentives does EPA create by the choice it 
makes in suggesting one consultation approach versus another? (i.e. Do 
incentives for parties to participate vary if EPA is participant rather than an 
observer? If the meetings are information exchange versus consensus- 
oriented?) 

What are the parties' underlying interests? Are they likely to be advanced 
through participation in the process? 

What are the parties' best alternatives to participation? Are alternatives 
likely to be perceived as more beneficial or less risky than the proposed 
process? 



How much time is available to prepare for and conduct a consultation 
process? Is that time adequate for the type of process contemplated? For 
example, if the timeline for a rule is constrained, it may not be appropriate 
to enter into an ongoing consultation process such as a FACA "policy 
dialogue" or regulatory negotiation. 



Is the timeframe of the consultation process in conflict with other relevant 



11 



Resources 



CONSENSUS-BUILDING 59 



activities of the parties' or the agency? For example, wiU the demands o( 
other responsibilities afford adequate staff time for the agency to pursue a 
consultation process? 



VNTiat kind of resources (people, materials, and financial) are necessar> to 
conduct the consultation process? Are adequate resources available to 
conduct the process? 



IV. Applying Criteria to Consultation Processes 

Combined responses to the questions presented above indicate tendencies for the 
most appropriate consultation approach to use for increasing participation in a regulatory 
effort. This section offers guidance in applying the criteria discussed in Part III to the 
consultation processes presented in Part II. 

The first consideration for the agency is whether to conduct any type of consultation 
process above the requirements of the Administrative Procedures Act (APA). Agency staff 
should begin by considering the answers to the contextual and incentive questions posed in 
Part III. If there appear to be confiicts between rulemaking processes or if parties are 
likely to litigate regardless, it may be appropriate to delay or avoid meetings, workshops 
or dialogues. Similarly, if the agency's or parties' incentives to participate appear to be 
inadequate, the agency may decide not to conduct any type of process beyond APA 
requirements. 

Potential reasons to conduct a consultation process include the following: 

Obtaining information from external interests to improve the content and 

implementability of a rule or policy; 

Improving relationships with affected interests; and 

Creating new ideas or alternative policy or regulatory structures. 

If the agency decides to proceed with a consultation process, several decisions will 
assist the agency in narrowing the choice of a specific consultation process. These decisions 
arise out of answering the following five questions: 

Should the agency pursue information exchange meetings or consensus- 

oriented dialogues or negotiations? 



12 



60 WHEN TO USE REG-NEG 



o Should the agenc_\ conduct a one-time meeting or a series of meetings? 

Should the agenc> meet with one interest group at a time or with ail interest 

groups simultaneousl>? 

n Is the agencN interested in conducting relative!) informal or more Tormai 

meetings? 

o If the agency decides to pursue forma! meetings, should it conduct a FACA 

policy dialogue or regulatory negotiation? 

Before deciding on an\ type of consultation process, the agency should determine 
that it has adequate time and resources to conduct the process. 

Should the agenc\ pursue information exchange meetings or consensus-oriented dialogues 

or negotiations? 

In deciding between information exchange meetings or consensus-oriented meetings, 
the agency should consider answers to the questions of Scope and Participation presented 
in Part III. 
Information exchange meetings are more suitable if: 

The scope of the issues is ill-defined or too numerous or complex to address 

in dialogue setting; 

Interested parties are not sufficiently educated on the issues to participate in 

a decision-oriented process; 

o Individuals or groups interested in the issues cannot be easily identified or 

are poorly organized; 

Interest groups cannot support selection of representatives to participate in 

a multi-party process. 

By conducting information exchange meetings, interest groups may be able to organize 
themselves and select representatives to later participate in a consensus-oriented process. 
Similarly, if affected interests are inadequately informed about relevant issues, conducting 
information exchange processes may prepare them to participate effectively in dialogues or 
negotiations. 

There may be interests who should be aware of and involved in a regulatory or policy 
decision, but have not been involved to date. In this case, the agency may identify 
individuals to participate in information exchange meetings in order to bring them up to 
speed for effective involvement. 



13 



CONSENSUS-BUILDING 61 



In order to conduct consencus-oriented dialogues or negotiations, representaii\cs of 
affected interests must be identifiable. Parties must be able to support the selection of 
representatives to speak for them during discussions. Issues must be somewhat focused and 
discreet in order to effectively discuss them (though policy dialogues often address broad 
sets of issues). Parties should be relatively knov^ledgeable about the issues before convening 
them for consensus-oriented discussions. 

In many cases, information exchange meetings will meet the goals of the agency. 
Instances in which the agency may want to consider consensus-oriented processes include 
situations where: 

Parties seek a consensus effort and are willing to commit the time and 

resources necessary to participate; 

Agency is willing to allow consensus decisions to guide a policy or regulatory 

decision; 

Agency desires an outcome supported by all affected interests; 

Agency seeks a policy or regulatory outcome that is more easily implemented 

(i.e. reduced administrative and legal challenges); 

Agency needs to address competing points of view earlier rather than later in 

the process; or 

Agency perceives that the incentives, timing, and available resources are in 

place so that the process is likely to succeed. 



Should the agencv conduct a one-time meeting or a series of meetings? 

Due to the nature of consensus-oriented meetings, these processes usually involve 
more than one meeting and are often subject to FACA. In the case of an information 
exchange consultation process, the agency may conduct a one-time meeting or a series of 
meetings. Primarily, this decision is determined by whether a one time meeting can provide 
sufficient technical and political information to complete the regulatory or policy task. If 
one meeting suffices, the choice is obvious. If affected interests may view one meeting as 
inadequate to communicate their concerns, more than one meeting should be considered. 



For more than one meeting, time constraints and availability of resources will affect 
the number of meetings conducted. The agency should clearly identify the scope of issues, 
resources available, and the goal of conducting meetings in order to determine in advance 
the number and timing of meetings. The agency should indicate its intentions for the 
number of meetings from the outset. This indication sets reasonable expectations and 



14 



62 WHEN TO USE REG-NEG 



olloMS afTected interests to plan their participation. 

Should the agencv meet v»ith one interest group at a time or with all interest eroups 
simultaneously? 

All consensus-oriented meetings, by dennition, involve more than one interest group. 
If the agency proceeds with an information exchange consultation process, it may meet with 
interest groups together or separately. If parties are interested in meeting together, it ma} 
be prudent and responsive to conduct public hearings, public meetings, workshops or 
roundtables. The agency should meet with parties simultaneously only if they are willing 
to share their views in each other's presence. The agency may want to have parties meet 
together if it wishes for parties to hear each other's views. If the nature of parties' concerns 
overlap, it also may be more efficient to have parties meet together so that similar concerns 
can be addressed at once. 



Is the agencv interested in conducting relatively informal or more fonnal meeting s? 

For information exchange processes, public hearings and meetings are considered 
more formal processes, whereas workshops, forums, and "roundtables" are less formal in 
nature. If the agency wishes to create an opportunity for a formal public testimony record, 
it should conduct a public hearing. A public meeting offers more opportunity for a two-way 
exchange of information than a hearing. Workshops, forums, and "roundtables" are 
sometimes off the record (though the press may be in attendance) and more discussion- 
rather than question/answer-oriented than public meetings. 

For a processes that aim at generating a consensus agreement, the agency must 
establish a FACA "policy dialogue" NOTE: Not all FACA efforts need be consensus- 
oriented.) If the meetings, issues and proposed participants meet FACA triggers, a FACA 
process must be pursued. If the agency seeks a high degree of formality in order to 
legitimize their decision making process, a FACA "policy dialogue" or regulatory negotiation 
may be appropriate. If the agency seeks to involve participants of high stature in the 
process, the formality of a FACA "policy dialogue" or regulatory negotiation may be 
appropriate. 

If the agencv decides to pursue formal meetings, should it conduct a FACA policy dialogue 
or regulatory negotiation? 

If the agency seeks the involvement of a consistent group of people in a formal 
setting, it must decide yvhether a "policy dialogue" or regulatory negotiation is more 
appropriate. The distinction here is relatively simple. If the scope of issues suggests 
broader policy issues, a policy dialogue is appropriate. Consensus agreements for a specific 
rulemaking are sought through the regulatory negotiation process. 

The tendencies toward use of particular consultation processes presented here are 

15 



CONSENSUS-BUILDING 63 



a sample of how the criteria (Part III) can be applied to the consultation processes (Part 
II). Each situation should be carerully evaluated using each or the criteria berore deciding 
on a specific approach. 



V. Key Factors in Initiating Consultation Processes 

Using the criteria and tendencies described in Parts III and IV' above, the agenc.> 
stnlT should begin its particular Clean Air Act implementation task by assessing the 
regulatory situation and making some preliminary judgements about what, if any, 
consultation process may be appropriate. The Agency stafT should consider the following 
checklist of internal and external factors as they proceed. 

Internal 

Does the Agency have adequate time and resources to conduct the consultation 

process under consideration? 

Does the Agency have adequate incentive to conduct the consultation process? 

Has the Agency decided its role in the process and remained cognizant of the affect 

of its role on the interest group's incentives to participate? 

Has an appropriate scope of issues been identified? 

Are other processes being conducted on related issues (either v^ithin the office or in 

other offices)? 

Will other processes affect or be affected by the consultation process? Will any 

related efforts be coordinated with the proposed process? 

Have the appropriate roles within EPA been defined for the effort? Has 

headquarters been consulted sufficiently early about the selected consultation 
process and the design of it? Is the proposed EPA team effective? Has an 
appropriate individual been identified to lead the effort? 

Are appropriate on-going channels of communication with headquarters in place? 



16 



64 WHEN TO USE REG-NEG 



Rvlernal 

Does Ihe Agency have an overall strategy or plan for consulting N»ith outside groups 

on the particular issues of concern? 

Does the Agency know one or two key representatives in each interest group in order 

to conduct an initial assessment? 

Have the Agency's expectations of the outside interests been defined and 

communicated to the interests? 

Does the Agency know the major concerns or interests of each interest group? 

Does the Agency know the current activities of affected interest groups? 

Is the Agency aware of the key interest group's alternative means of effecting the 

regulatory process? 

Does the Agency have reliable information and feedback from affected interests as 

to the viability of the selected approach? 

Is the Agency likely to have the participation of the key interest groups in a 

consultation process? 

Does the Agency have an understanding for the needs and concerns of agencies and 

government officials outside EPA (e.g. White House, states, congressional 
members)? 

Does the Agency have a plan for coordinating the input of these outside non- 
government offices? 

In conducting the assessment or as part of conducting a consultation process, the 
Agency may want to use the services of a third party neutral. Possible roles for third 
parties may include: 

providing EPA staff with feedback on their preliminary judgements 
about what consultation strategy to pursue; 

exploring and obtaining feedback from affected interests on EPA's 
ideas about strategies to pursue; 

if necessary, conducting a formal "convening assessment;" and. 

facilitating discussions/negotiations with key interest groups. 



17 



CONSENSUS-BUILDING 65 



Uithin the OfTice of Policy, Planning and Evaluation (OPPE). there exists the 
Regulator7 Negotiation Project. The staff afTiliated with this project can be of assistance 
to Agenc\ staff as thev pursue not only regulatory negotiations, but all consultation and 
consensus-building options discussed in this paper. The Agency's OfTice of Policy, Planning 
and Evaluation staff, EPA,s Committee Management OfTicer, and the Office of General 
Counsel FACA attorney can be of particular assistance in answering questions related to 
FACA and the use of outside third party facilitators. 



18 



inll 



CHAPTER 3 - THE STATUTORY BASIS FOR 
NEGOTIATED RULEMAKING 



In passing the Negotiated Rulemaking Act of 1990 (Public Law 
No. 101-648, codified at 5 U.S.C. §§561-570), Congress 
recognized and endorsed the authority of federal agencies to use 
negotiated rulemaking procedures. The Act created a statutory 
framework that nevertheless allows for substantial flexibility in 
using reg-neg and encourages "innovation and experimentation with 
the negotiated rulemaking process or with other innovative 
rulemaking procedures otherwise authorized by law." (5 U.S.C. 
§561) The Act is reprinted in the appendix. 

Because the 1990 Act contains a "sunset" provision (§5) 
repealing the Act in November 1996, it is important to note that 
renewal of the Act is not a prerequisite to continued use of reg-neg. 
In listing its legislative "findings" (§2), Congress noted that 
"[a]gencies have the authority to establish negotiated rulemaking 
committees under the laws establishing such agencies and their 
activities and under the Federal Advisory Committee Act." Thus 
the Act was not intended to create new authority, but rather to 
provide some basic groundrules and safeguards. 



Negotiated Rulemaking as a Supplement to APA Procedures 

The Administrative Procedure Act (APA), enacted in 1946, 
imposes upon federal agencies certain procedural requirements for 
two modes of agency decisionmaking: rulemaking and adjudication. 
(See 5 U.S.C. §§551-559.) "Rulemaking" is agency action that 
regulates the future conduct of persons, through formulation and 
issuance of an agency statement (a "rule" or "regulation") designed 
to implement, interpret, or prescribe law or policy. It is essentially 
legislative in nature because of its future general applicability and 
its concern for policy considerations. By contrast, "adjudication" is 
concerned with the determination of past and present rights and 
liabilities, resulting in the issuance of an "order." (See 5 U.S.C. 
§551.) 



67 



ri 



68 STATUTORY BASIS 




Beyond the distinction between rulemaking and adjudication, 
the APA subdivides each of these categories of agency action into 
"formal" and "informal" proceedings. Whether a particular 
rulemaking or adjudication is considered to be formal depends on 
whether the proceeding is required by statute to be "on the record 
after opportunity for an agency hearing" (5 U.S.C. §§553(c), 
554(a)). The Act prescribes elaborate procedures for both formal 
rulemaking and formal adjudication, and relatively minimal 
procedures for informal rulemaking. This Sourcebook is concerned 
only with negotiation of rules in the context of informal 
rulemaking, which is the prevalent form. 

Section 553 (see appendix) sets forth the basic requirements for 
virtually all rulemaking: notice of proposed rulemaking in the 
Federal Register, followed by an opportunity for some level of 
participation by interested persons, and finally publication of the 
rule, in most instances at least thirty days before it becomes 
effective. Excluded from coverage by the APA are rulemaking 
involving military or foreign affairs functions and matters relating 
to agency management or personnel, public property, loans, grants, 
benefits, or contracts. These exclusions are not mandatory or 
intended to discourage agencies from using public participation 
procedures. For a detailed discussion of rulemaking procedures, 
see A Guide to Federal Agency Rulemaking, published by the 
Administrative Conference (2d ed. 1991). 

In informal rulemaking, the only public participation that is 
required by the APA is an opportunity to submit written data, 
views, or arguments; oral presentations may also be permitted. The 
published rule must incorporate a concise general statement of its 
basis and purpose. However, with the great increase in the 
complexity of government regulation that has occurred since the 
APA was enacted, the rulemaking process itself has become more 
complex. 

In many instances, Congress has added, through other statutes, 
procedural requirements that affect various agency programs. (At 
the time of publication in mid-1995. Congress was considering 
substantial revisions to the analyses and other steps that may be 
required in promulgating regulations.) In general, such additional 
requirements have been intended to improve the way in which 
agencies obtain and use information needed for the drafting of rules, 
and to increase the value and effectiveness of participation in 
rulemaking by those persons who are likely to be affected by the 
resulting rules. Although these procedures may provide safeguards 



STATUTORY BASIS 69 



against arbitrary or capricious decisions by agencies and help ensure 
that agencies develop sound factual bases for exercising their 
discretion, the increased formalization of the "informal" rulemaking 
process has also had adverse consequences. The various affected 
interests, including the agency, tend to develop adversarial 
relationships with each other causing them to take extreme 
positions, to withhold information from one another, and to attack 
the legitimacy of opposing positions. Participants in rulemaking 
rarely meet with each other and with the agency as a group to 
communicate their respective views, so that each can react directly 
to the concerns and positions of others in an effort to resolve 
conflicts. 

This is the context in which the concept of negotiated 
rulemaking has emerged. Negotiated rulemaking is a supplement to 
the rulemaking procedures prescribed by the Administrative 
Procedure Act. As such, it is consistent with that Act. The 
essential function of a negotiating committee in rulemaking is to try 
to reach a consensus on a proposed rule. At that point, the agency 
considers whether to issue a notice of proposed rulemaking and the 
APA's provisions for public comment apply. 

So long as the agency complies with the APA's basic notice 
and comment requirements and the agency retains discretion to 
determine the content of the final rule, there should be no conflict 
with the requirements of the APA. While agencies have been 
willing to commit themselves at the outset to publishing a proposed 
rule that incorporates the results of the negotiations, they routinely 
remind the negotiators that the statutory requirements are applicable 
even to a negotiated agreement. Some examples of language used 
by agencies are: 

• [The Federal Railroad Administration] would issue 
the proposed rule as prepared by the Committee unless it 
is inconsistent with statutory authority of the agency or 
other legal requirements or does not, in the agency's view, 
adequately address the subject matter. If that occurs, FRA 
would explain the reasons for its decision, or would 
modify the proposal in a way that allows the public to 
distinguish modifications from the original proposal. (59 
Fed. Reg. 42203, Aug. 17, 1994) 

• The agency intends to use any consensus that is 
justified and within its statutory authority as the basis of 
the proposal. (EPA, 51 Fed. Reg. 25401, July 14, 1986) 




70 STATUTORY BASIS 




• OSHA, to the maximum extent possible consistent 
with the legal obligations of the Agency, will use the 
consensus of the Committee as the basis for the rule 
proposed by the Agency for public notice and comment. . 
. . The Agency ... is committed to publishing a 
consensus proposal that is consistent with OSHA's legal 
mandates. (59 Fed. Reg. 25850, May 18, 1994) 

Some agencies using reg-neg, such as EPA, ordinarily 
terminate their negotiating committees when a report is received, 
either proposing a rule on the basis of a consensus, reporting a 
partial consensus, or reporting an inability to reach consensus. The 
Department of Transportation has found it advantageous to keep the 
committee in existence long enough to be able to consult with the 
committee after receipt of public comments on the proposed rule. 
The Reg-Neg Act permits either practice. (5 U.S.C. §567) 

Any such agency consultations with a negotiating committee or 
its members should be carried out in public so as to minimize 
objections on the grounds of improper ex parte contacts. This term 
refers to oral or written communications not on the public record 
for which interested parties have not received reasonable notice (5 
U.S.C. §551). To avoid the problem, consultations can take place 
at open committee meetings, with advance notice published in the 
Federal Register. The agency should put into the rulemaking record 
the content of all discussions with the negotiating committee held 
after the public comment period. (See Administrative Conference 
Recommendation 77-3, 1 CFR §305.77-3, in the appendix.) 



The Federal Advisory Committee Act 

The Federal Advisory Committee Act (FACA), Public Law 
No. 92-463, 5 U.S.C. App., was enacted by Congress in 1972 to 
provide uniform standards for the operation of advisory committees 
within the executive branch, to monitor the number of committees 
and their activity, and to assure that the public would have access to 
their deliberations. (See appendix for the text of FACA.) 
"Advisory committee" is defined by section 3 of the Act to include 
any committee or similar group that is (1) established or utilized in 
the interest of obtaining advice or recommendations for the 
President or one or more federal agencies and (2) not composed 
wholly of full-time federal officers or employees. The Reg-Neg Act 
makes clear that, in general, negotiated rulemaking committees are 
required to be established and operated in accordance with the 



STATUTORY BASIS 71 



requirements of FACA, except as modified by the Reg-Neg Act. 
(See 5 U.S.C. §565(a)(l)) Typically, agency notices of intent to 
form an advisory committee include a statement to that effect: 

Negotiations are conducted through advisory committees 
chartered under the Federal Advisory Committee Act. All 
procedural requirements of the Administrative Procedure 
Act and other applicable statutes continue to apply. (EPA, 
51 Fed. Reg. 25401, July 14, 1986) 

In a few instances in which Congress has required an agency to use 
reg-neg, the legislation has specifically exempted the committee 
from complying with FACA. (See, e.g., Higher Education 
Amendments of 1992, Public Law No. 102-325, §497) An 
exclusion from FACA may also exist in the special situation where 
all members of the committee are representatives of state, local, 
Indian tribal, and federal government entities. (See Unfunded 
Mandates Reform Act of 1995, Public Law No. 104-4, §204) 

Among the requirements of FACA are that new advisory 
committees be established only after public notice and upon a 
determination that establishment is in the public interest (§9), that 
the membership of each advisory committee be fairly balanced in 
terms of the points of view represented (§5), and that meetings of 
advisory committees be open to the public, subject to the same 
exemptions as in the Government in the Sunshine Act (5 U.S.C. 
§552b). 

The requirements of FACA that are modified by the Reg-Neg 
Act relate to who chairs the meetings (5 U.S.C. §566), the extent to 
which committee members' expenses may be paid (§568), and 
provisions for terminating the committee (§567). Also, the Reg- 
Neg Act requires an additional public notice, announcing the 
agency's intent to establish a reg-neg committee and inviting 
persons who believe their interests are not adequately represented to 
apply for membership on the committee. (See 5 U.S.C. §564) 

The guidance and coordination of advisory committees, 
assigned by section 7 of the Act to the Office of Management and 
Budget (0MB), has been transferred under Executive Order 12024 
(Dec. 1, 1977) to the Administrator of the General Services 
Administration (GSA). An important step in setting up an advisory 
committee (§9) is submission by the agency of the committee's 
charter to GSA for review. GSA, in turn, refers rulemaking 
negotiation committee charters to 0MB for further review. 




72 STATUTORY BASIS 



P 



The time consumed by the chartering process has long been 
criticized as a source of unnecessary delay. Furthermore, several 
administrations have tried to limit, in general, the number of 
advisory committees. For example, Executive Order 12838 
required a finding of compelling reasons by the agency head and the 
approval of the Director of the Office of Management and Budget 
before an agency could create any new advisory committee. 

Because review and approval procedures for committees change 
from time to time, current information should be obtained by 
agencies proposing reg-neg committees. Good sources of assistance 
are the agency's own advisory committee management officer, the 
Committee Management Secretariat at GSA, and the Office of 
Information and Regulatory Affairs at 0MB. 

GSA, in 1987, adopted a final rule governing advisory 
committees (41 CFR Part 101-6, 52 Fed. Reg. 45926, Dec. 2, 
1987), replacing the interim rule that had been effect since 1983. 
(See appendix for the text of the GSA rule.) The final rule contains 
language that helps resolve a major concern that has been raised 
about the effect of FACA on negotiated rulemaking committees. 
Many experienced negotiators and mediators maintain that 
successful negotiations often depend on sensitive discussions among 
various groups of negotiators. To require that all such discussions 
be deemed "meetings" under FACA and therefore be open to public 
scrutiny would, they say, doom reg-neg to failure. Privacy may 
also be necessary when parties with allied concerns want to caucus 
in order to discuss common negotiating positions on issues. The 
GSA rule lists a number of examples of advisory meetings or 
groups that GSA would exclude from coverage of the Act, 
including: 

Meetings of two or more advisory committee or 
subcommittee members convened solely to gather 
information or conduct research for a chartered advisory 
committee, to analyze relevant issues and facts, or to draft 
proposed position papers for deliberation by the advisory 
committee or a subcommittee of the advisory committee. 
41 CFR §101-6.1004 (k) 

The Administrative Conference has suggested the usefulness of 
statutory language that would explicitly authorize private meetings 
of subgroups or caucuses of a negotiated rulemaking committee for 
the purpose of determining negotiating positions, alternative 
proposals, or other matters for consideration by the full committee 
in open session. Nevertheless, in practice, the existing provisions 



STATUTORY BASIS 73 



of FACA appear not to pose any serious obstacle to successful reg- 
neg. In 1985, the Conference reexamined its 1982 recommendation 
on negotiated rulemaking, and modified and supplemented its advice 
in the light of agencies' actual experience. At that time, the 
Conference again considered the question of whether FACA needed 
to be amended, and wrote as follows: 

Some agencies have indicated a concern about the effect of 
the Federal Advisory Committee Act on negotiated 
rulemaking proceedings. The four agency experiences 
reviewed by the Administrative Conference have not 
shown that the Act, as interpreted by the sponsoring 
agencies and participants, impeded effective negotiations. 
Under current judicial and agency interpretations of the 
Act, it appears that caucuses and other working group 
meetings may be held in private, where this is necessary 
to promote an effective exchange of views. (1 CFR 
§305.85-5 -- see appendix to chapter 1) 

The determinative issue appears to be the extent to which 
decisions are actually made in the subgroup. Clearly it is the intent 
of FACA to make public those deliberations where the actual 
formulation of the advice takes place. If the real negotiations are 
in a subgroup or working group, and the full committee is a merely 
a rubber stamp, then the subgroup should be subject to the openness 
requirements of the Act. If all of the committee members who care 
strongly about a particular issue participate in the subgroup that 
addresses that issue, then it is likely that this is where the real 
decisions are being made. 

If, on the other hand, the working group meetings are largely 
drafting sessions, or are exploratory discussion sessions for the 
purpose of identifying issues and alternative solutions for 
consideration by the full committee, then this suggests that the 
subgroups are not performing the essential function of advisory 
committees as envisioned in the Act, and only the full committee 
should be subject to the openness requirement. 

Even if negotiations occur in subgroup meetings, and the 
subgroup proposes negotiated solutions on certain issues to the full 
committee, the full committee may insist on engaging in a total 
review de novo. In this instance, it is arguable that the source of 
the advice offered to the agency by the negotiating committee is 
actually the full committee and not the subgroup, and therefore the 
subgroup should not be subjected to FACA's openness 
requirements. Some support for this argument may be found in 



B 



I 



74 STATUTORY BASIS 



B 



National Anti-Hunger Coalition v. Executive Committee of the 
President's Private Seaor Survey on Cost Control, 711 F.2d 1071 
(D.C. Cir. 1983). 

Section 9(a)(2) of FACA requires a Federal Register notice for 
establishment of an advisory committee. Other chartering 
requirements are in section 9(c). Because negotiating committees 
are usually chartered in conjunction with the convening process, 
sample documents that an agency normally would have to draft in 
establishing a conmiittee appear in the Sourcebook in the appendix 
to chapter 4. 

Section 10(e) of FACA requires designation of a federal officer 
or employee to chair or attend each advisory committee meeting. 
(See also § 10(f).) This requirement is normally satisfied by the 
presence of the agency's negotiating representative. That person, 
however, would not chair the negotiating sessions - a role 
ordinarily handled by a mediator or facilitator. (See 5 U.S.C. 
§566(d)) 

Section 7(d) of FACA provides authority, where appropriate, 
for payment of travel expenses and compensation for members of 
advisory committees. Section 12(b) provides that each agency shall 
be responsible for providing support services for committees that it 
may establish. 

When the Federal Trade Commission conducted its first 
negotiated rulemaking, the negotiating committee was the agency's 
first advisory committee created under FACA. The Commission 
therefore had to adopt a regulation governing management of 
advisory committees. An agency that has not previously used 
advisory committees, which is considering the formation of a reg- 
neg committee, may find it useful to refer to the FTC's Federal 
Register notice adopting a rule on advisory committee management. 
(51 Fed. Reg. 30055 (Aug. 22, 1986); 16 CFR Part 16) 



Other Statutory Requirements. Executive Orders, etc. 

Adoption of agency regulations may be subject to additional 
statutory constraints and the special requirements of the Paperwork 
Reduction Act (44 U.S.C. §§3501-3520), the Regulatory Flexibility 
Act (5 U.S.C. §§601-612), and applicable executive orders affecting 
regulatory planning and review (e.g., Executive Order 12866). For 
a detailed discussion of these matters, see Federal Administrative 
Procedure Sourcebook (2d ed. 1992) and A Guide to Federal 



STATUTORY BASIS 75 



Agency Rulemaking (2d ed. 1991), both published by the 
Administrative Conference. 



A ppendix 

The appendix contains the text of the Negotiated Rulemaking 
Act of 1990 and an excerpt from the Administrative Conference's 
Federal Administrative Procedure Sourcebook (chapter 14, 2d ed. 
1992) summarizing the Act and its legislative history. Also 
reprinted is a supporting statement of Senator Carl Levin, the 
sponsor of the Senate bill that became the Negotiated Rulemaking 
Act. 

Section 553 of the Administrative Procedure Act sets forth the 
basic statutory requirements for rulemaking. Administrative 
Conference Recommendation 77-3 addresses ex parte concerns. 
The Federal Advisory Committee Act and GSA's committee 
management rule contain requirements and provide guidelines for 
establishment and operation of advisory committees. 



I 




I 



76 STATUTORY BASIS 



d 



Negotiated Rulemaking Act 

(Public Law 101-648, as amended by Public Law 102-354) 

Title 5, U.S. Code 

Subchapter III — Negotiated Rulemaking Procedure 

§561. Purpose. 

§562. Definitions. 

§563. Determination of need for negotiated rulemaking committee. 

§564. Publication of notice; applications for membership on committees. 

§565. Establishment of committee. 

§566. Conduct of committee activity. 

§567. Termination of committee. 

§568. Services, facilities, and payment of committee member expenses. 

§569. Role of the Administrative Conference of the United States and other entities. 

§570. Judicial review. 

Subchapter III — Negotiated Rulemaking Procedure* 
Repeal of Subchapter 

Subchapter repealed effective six years after Nov. 29, 1990; see section 5 of Pub. L. No. 
101-648, as amended, set out as an Effective Date of Repeal; Savings Provision note under 
section 561 of this subchapter. 

$561. Purpose 

The purpose of this subchapter is to establish a framework for the conduct of negotiated 
rulemaking, consistent with section 553 of this title, to encourage agencies to use the process 
when it enhances the informal rulemaking process. Nothing in this subchapter should be 
construed as an attempt to limit innovation and experimentation with the negotiated rulemaking 
process or with other innovative rulemaking procedures otherwise authorized by law. 

(Added Pub. L. No. 101-648, §3(a), Nov. 29, 1990, 104 Stat. 4970.) 

EFFECTIVE Date of REPEAL; SAVINGS PROVISION 

Section 5 of Pub. L. No. 101-648, as amended by Pub. L. No. 102-354, provided that: 
"Subchapter III of chapter 5 of title 5, United States Code (enacted as subchapter IV of chapter 5 
of title 5, United States Code, by section 3 of this Act and redesignated as subchapter III of such 
chapter 5 by section (3)(a) of [Public L. No. 102-354]) and that portion of the table of sections 
at the beginning of chapter 5 of title 5, United States Code, relating to subchapter III, are 
repealed, effective 6 years after the date of the enactment of this Act [Nov. 29, 1990], except 
that the provisions of such subchapter shall continue to apply after the date of the repeal with 
respect to then pending negotiated rulemaking proceedings initiated before the date of repeal 
which, in the judgment of the agencies which are convening or have convened such proceedings, 
require such continuation, until such negotiated rulemaking proceedings terminate pursuant to 
such subchapter. " 



Public Law 102-354 renumbered the sections of the Negotiated Rulemaking Act. 



REG-NEG ACT 77 



Congressional Findings 

Section 2 of Pub. L. No. 101-648 provided that: "The Congress makes the following 
findings: 

*(1) Government regulation has increased substantially since the enactment of the 
Administrative Procedure Act. 

'(2) Agencies currently use rulemaking procedures that may discourage the affected parties 
from meeting and communicating with each other, and may cause parties with different interests 
to assume conflicting and antagonistic positions and to engage in expensive and time-consuming 
litigation over agency rules. 

'(3) Adversarial rulemaking deprives the affected parties and the public of the benefits of 
face-to-face negotiations and cooperation in developing and reaching agreement on a rule. It also 
deprives them of the benefits of shared information, knowledge, expertise, and technical abilities 
possessed by the affected parties. 

'(4) Negotiated rulemaking, in which the parties who will be significantly affected by a 
rule participate in the development of the rule, can provide significant advantages over 
adversarial rulemaking. 

*(S) Negotiated rulemaking can increase the acceptability and improve the substance of 
rules, making it less likely that the affected parties will resist enforcement or challenge such 
rules in court. It may also shorten the amount of time needed to issue final rules. 

*(6) Agencies have the authority to establish negotiated rulemaking committees under the 
laws establishing such agencies and their activities and under the Federal Advisory Committee 
Act (5 U.S.C. App.). Several agencies have successfully used negotiated rulemaking. The 
process has not been widely used by other agencies, however, in part because such agencies are 
unfamiliar with the process or uncertain as to the authority for such rulemaking." 



AUTHORIZATION OF APPROPRIATIONS 

Section 4 of Pub. L. No. 101-648 provided that: "In order to carry out this Act and the 
amendments made by this Act, there are authorized to be appropriated to the Administrative 
Conference of the United States, in addition to amounts authorized by section S96 of title S, 
United SUtes Code, not in excess of $500,000 for each of the fiscal years 1991, 1992, and 
1993." 



§562. Dennitions 

For the purposes of this subchapter, the term— 

(1) "agency" has the same meaning as in section 551(1) of this title; 

(2) "consensus" means unanimous concurrence among the interests represented on a 
negotiated rulemaking committee established under this subchapter, unless such committee 

(A) agrees to defme such term to mean a general but not unanimous concurrence; or 

(B) agrees upon another specified defmition; 

(3) "convener" means a person who impartially assists an agency in determining whether 
establishment of a negotiated rulemaking committee is feasible and appropriate in a particular 
rulemaking; 

(4) "facilitator" means a person who impartially aids in the discussions and negotiations 
among the members of a negotiated rulemaking committee to develop a proposed rule; 



B 



78 STATUTORY BASIS 




(5) 'interest* means, with respect to an issue or matter, multiple parties which have a 
similar point of view or which are likely to be affected in a similar manner; 

(6) 'negotiated rulemaking" means rulemaking through the use of a negotiated rulemaking 
committee; 

(7) "negotiated rulemaking committee" or 'committee' means an advisory committee 
established by an agency in accordance with this subchapter and the Federal Advisory 
Conunittee Act to consider and discuss issues for the purpose of reaching a consensus in the 
development of a proposed rule; 

(8) "party" has the same meaning as in section SSI (3) of this title; 

(9) 'person* has the same meaning as in section SS 1(2) of this title; 

(10) "rule" has the same meaning as in section SS 1(4) of this title; and 

(11) 'rulemaking' means 'rule making' as that term is defined in section SSl(S) of this 
title. 

(Added Pub. L. No. 101-648, §3(a), Nov. 29, 1990, 104 Stat. 4970.) 

§563. Determination of need for negotiated rulemaking committee 

(a) Determination of Need by the Agency. An agency may establish a negotiated 
rulemaking committee to negotiate and develop a proposed rule, if the head of the agency 
determines that the use of the negotiated rulemaking procedure is in the public interest. In 
making such a determination, the head of the agency shall consider whether 

(1) there is a need for a rule; 

(2) there are a limited number of identifiable interests that will be significantly affected by 
the rule; 

(3) there is a reasonable likelihood that a committee can be convened with a balanced 
representation of {>ersons who 

(A) can adequately represent the interests identified under pangnph (2); and 

(B) are willing to negotiate in good faith to reach a consensus on the proposed rule; 

(4) there is a reasonable likelihood that a committee will reach a consensus on the proposed 
rule within a fixed period of time; 

(5) the negotiated rulemaking procedure will not unreasonably delay the notice of proposed 
rulemaking and the issuance of the fmal rule; 

(6) the agency has adequate resources and is willing to commit such resources, including 
technical assistance, to the committee; and 

(7) the agency, to the maximum extent possible consistent with the legal obligations of the 
agency, will use the consensus of the committee with respect to the proposed rule as the basis 
for the rule proposed by the agency for notice and comment. 

(b) Use of Conveners. 

(1) Purposes of conveners. An agency may use the services of a convener to assist the 
agency in 

(A) identifying persons who will be significantly affected by a proposed rule, including 
residents of rural areas; and 



REG-NEG ACT 79 



(B) conducting discussions with such persons to identify the issues of concern to such 
persons, and to ascertain whether the establishment of a negotiated rulemaking committee is 
feasible and appropriate in the particular rulemaking. 

(2) Duties of conveners. The convener shall report findings and may make 
recommendations to the agency. Upon request of the agency, the convener shall ascertain the 
names of persons who are willing and qualified to represent interests that will be significantly 
affected by the proposed rule, including residents of rural areas. The report and any 
recommendations of the convener shall be made available to the public upon request. 

(Added Pub. L. No. 101-648, §3(a), Nov. 29, 1990, 104 Stat. 4970.) 



§564. Publication of notice; applications for membership on committees 

(a) Publication of Notice. If, after considering the report of a convener or conducting its 
own assessment, an agency decides to establish a negotiated rulemakine committee, the agency 
shall publish in the Federal Register and, as appropriate, in trade or other specialized 
publications, a notice which shall inchide 

(1) an announcement that the agency intends to establish a negotiated rulemaking 
committee to negotiate and develop a proposed rule; 

(2) a description of the subject and scope of the rule to be developed, and the issues to be 
considered; 

(3) a list of the interests which are likely to be significantly affected by the rule; 

(4) a list of the persons proposed to represent such interests and the person or persons 
proposed to represent the agency; 

(5) a proposed agenda and schedule for completing the work of the committee, including a 
target date for publication by the agency of a proposed rule for notice and conunent; 

(6) a description of administrative support for the conunittee to be provided by the agency, 
including technical assistance; 

(7) a solicitation for conunents on the proposal to establish the committee, and the 
proposed membership of the negotiated rulemaking committee; and 

(8) an explanation of how a person may apply or nominate another person for membership 
on the committee, as provided under subsection (b). 

(b) Applications for Membership or^ Conunittee. Perspns who will be significantly 
affected by a proposed rule and who believe that their interests will not be adequately 
represented by any person specified in a notice under subsection (a)(4) may apply for, or 
nominate another person for, membership on the negotiated rulemaking committee to represent 
such interests with respect to the proposed rule. Each application or nomination shall include 

(1) the name of the applicant or nominee and a description of the interests such person shall 
rq>resent; 

(2) evidence that the applicant or nominee is authorized to represent parties related to the 
interests the person proposes to represent; 

(3) a written commitment that the applicant or nominee shall actively participate in good 
faith in the development of the rule under consideration; and 

(4) the reasons that the persons specified in the notice under subsection (a)(4) do not 
adequately represent the interests of the person submitting the application or nomination. 



' So in original. Probably should be "on". 



80 STATUTORY BASIS 



(c) Period For Submission of Comments and Applications. The agency shall provide 
for a period of at least 30 calendar days for the submission of comments and applications under 
this section. 

(Added Pub. L. No. 101-648, §3(a), Nov. 29. 1990, 104 Stat. 4971.) 



§565. Establishment of committee 

(a) Establishment. 

(1) E>etermination to establish committee. If after considering comments and applications 
submitted under section 564, the agency determines that a negotiated rulemaking committee can 
adequately represent the interests that will be significantly affected by a proposed rule and that it 
is feasible and appropriate in the particular rulemaking, the agency may establish a negotiated 
rulemaking committee. In establishing and administering such a committee, the agency shall 
comply with the Federal Advisory Committee Act with respect to such committee, except as 
otherwise provided in this subchaoter. 

(2) Determination not to establish committee. If after considering such comments and 
applications, the agency decides not to establish a negotiated rulemaking committee, the agency 
shall promptly publish notice of such decision and the reasons therefor in the Federal Register 
and, as appropriate, in trade or other specialized publications, a copy of which shall be sent to 
any person who applied for, or nominated another person for membership on the negotiating^ 
rulemaking committee to represent such interests with respect to the proposed rule. 

(b) Membership. The agency shall limit membership on a negotiated rulemaking 
committee to 25 members, unless the agency head determines that a greater number of members 
is necessary for the functioning of the committee or to achieve balanced membership. Each 
conmiittee shall include at least one person representing the agency. 

(c) Administrative Support. The agency shall provide appropriate administrative support 
to the negotiated rulemaking committee, including technical assistance. 

(Added Pub. L. No. 101-648, §3(a), Nov. 29, 1990, 104 SUt. 4972.) 



§566. Conduct of committee activity 

(a) Duties of Committee. Each negotiated rulemaking committee established imder this 
subchapter shall consider the matter proposed by the agency for consideration and shall attempt 
to reach a consensus concerning a proposed rule with respect to such matter and any other matter 
the conmiittee determines is relevant to the proposed rule. 

(b) Representatives of Agency on Committee. The person or persons representing the 
agency on a negotiated rulemaking committee shall participate in the deliberations and activities 
of the committee with the same rights and responsibilities as other members of the committee, 
and shall be authorized to fully represent the agency in the discussions and negotiations of the 
conmiittee. 

(c) Selecting Facilitator. Notwithstanding section 10(e) of the Federal Advisory 
Committee Act, an agency may nominate either a person from the Federal Government or a 
person from outside the Federal Government to serve as a facilitator for the negotiations of the 
committee, subject to the approval of the committee by consensus. If the committee does not 
approve the nominee of the agency for facilitator, the agency shall submit a substitute 
nomination. If a committee does not approve any nominee of the agency for facilitator, the 
committee shall select by consensus a person to serve as facilitator. A person designated to 



' So in original. Probably should be "negotiated" 



REG-NEG ACT 81 



r^resent the agency in substantive issues may not serve as facilitator or otherwise chair the 
committee. 

(d) Duties of Facilitator. A facilitator approved or selected by a negotiated rulemaking 
committee shall 

(1) chair the meetings of the committee in an impartial manner; 

(2) impartially assist the members of the committee in conducting discussions and 
negotiations; and 

(3) manage the keeping of minutes and records as required under section 10(b) and (c) of 
the Federal Advisory Committee Act, except that any personal notes and materials of the 
facilitator or of the members of a committee shall not be subject to section 552 of this title. 

(e) Committee Procedures. A negotiated rulemaking committee established under this 
subchapter may adopt procedures for the operation of the committee. No provision of section 
553 of this title shall apply to the procedures of a negotiated rulemaking committee. 

(f) Report of Committee. If 9 committee reaches a consensus on a proposed rule, at the 
conclusion of negotiations the committee shall transmit to the agency that established the 
committee a report containing the proposed rule. If the committee does not reach a consensus on 
a proposed rule, the committee may transmit to the agency a report specifying any areas in 
which the committee reached a consensus. The committee may include in a report any other 
information, recommendations, or materials that the conmiittee considers appropriate. Any 
conunittee member may include as an addendum to the report additional information, 
recommendations, or materials. 

(g) Records of Committee. In addition to the report required by subsection (f), a 
committee shall submit to the agency the records required under section 10(b) and (c) of the 
Federal Advisory Committee Act. 

(Added Pub. L. No. 101-648, §3(a), Nov. 29, 1990, 104 Stat. 4973.) 



S567. Termination of committee 

A negotiated rulemaking committee shall terminate upon promulgation of the final rule 
under consideration, unless the committee's charter contains an earlier termination date or the 
agency, after consulting the committee, or the committee itself specifies an earlier termination 
date. 

(Added Pub. L. No. 101-648, §3(a), Nov. 29, 1990, 104 SUt. 4974.) 



$568. Services, facilities, and payment of committee member expenses 

(a) Services of Conveners and Facilitators. 

(1) In general. An agency may employ or enter into contracts for the services of an 
individual or organization to serve as a convener or facilitator for a negotiated rulemaking 
committee under this subchapter, or may use the services of a Government employee to act as a 
convener or a facilitator for such a committee. 

(2) Determination of conflicting interests. An agency shall determine whether a person 
under consideration to serve as convener or facilitator of a committee under paragraph (1) has 
any fmancial or other interest that would preclude such person from serving in an impartial and 
independent manner. 

(b) Services and Facilities of Other Entities. For purposes of this subchapter, an agency 
may use the services and facilities of other Federal agencies and public and private agencies and 



82 STATUTORY BASIS 



instrumentalities with the consent of such agencies and instrumentalities, and with or without 
reimbursement to such agencies and instrumentalities, and may accept voluntary and 
uncompensated services without regard to the provisions of section 1342 of title 31. The Federal 
Mediation and Conciliation Service may provide services and facilities, with or without 
reimbursement, to assist agencies under this subchapter, including furnishing conveners, 
facilitators, and training in negotiated rulemaking. 

(c) Expenses of Committee Members. Members of a negotiated rulemaking committee 
shall be responsible for their own expenses of participation in such committee, except that an 
agency may, in accordance with section 7(d) of the Federal Advisory Committee Act, pay for a 
member's reasonable travel and per diem expenses, expenses to obtain technical assistance, and a 
reasonable rate of compensation, if 

(1) such member certifies a lack of adequate financial resources to participate in the 
committee; and 

(2) the agency determines that such member's participation in the committee is necessary to 
assure an adequate representation of the member's interest. 

(d) Status of Member as Federal Employee. A member's receipt of funds under this 
section or section 569 shall not conclusively determine for purposes of sections 202 through 209 
of title 18 whether that member is an employee of the United States Government. 

(Added Pub. L. No. 101-648, §3(a), Nov, 29, 1990, 104 Stat. 4974.) 



§569. Role of the Administrative Conrerence of the United States and other 
entities 

(a) Consultation by Agencies. An agency may consult with the Administrative 
Conference of the United States or other public or private individuals or organizations for 
information and assistance in forming a negotiated rulemaking committee and conducting 
negotiations on a proposed rule. 

(b) Roster of Potential Conveners and Facilitators. The Administrative Conference of 
the United States, in consultation with the Federal Mediation and Conciliation Service, shall 
maintain a roster of individuals who have acted as or are interested in serving as conveners or 
facilitators in negotiated rulemaking proceedings. The roster shall include individuals from 
government agencies and private groups, and shall be made available upon request. Agencies 
may also use rosters maintained by other public or private individuals or organizations. 

(c) Procedures To Obtain Conveners and Facilitators. 

(1) Procedures. The Administrative Conference of the United States shall develop 
procedures which permit agencies to obtain the services of conveners and facilitators on an 
expedited basis. 

(2) Payment for services. Payment for the services of conveners or facilitators shall be 
made by the agency using the services, unless the Chairman of the Administrative Conference 
agrees to pay for such services under subsection (0- 

(d) Compilation of Data on Negotiated Rulemaking; Report to Congress. 

(1) Compilation of data. The Administrative Conference of the United States shall 
compile and maintain data related to negotiated rulemaking and shall act as a clearinghouse to 
assist agencies and parties participating in negotiated rulemaking proceedings. 

(2) Submission of information by agencies. Each agency engaged in negotiated 
rulemaking shall provide to the Administrative Conference of the United States a copy of any 
reports submitted to the agency by negotiated rulemaking committees under section 566 and 



REG-NEG ACT 83 



such additional information as necessary to enable the Administrative Conference of the United 
States to comply with this subsection. 

(3) Reports to congress. The Administrative Conference of the United States shall review 
and analyze the reports and information received under this subsection and shall transmit a 
biennial report to the Committee on Governmental Affairs of the Senate and the appropriate 
committees of the House of Representatives that 

(A) provides recommendations for effective use by agencies of negotiated rulemaking; and 

(B) describes the nature and amounts of expenditures made by the Administrative 
Conference of the United States to accomplish the purposes of this subchapter. 

(e) Training in Negotiated Rulemaking. The Administrative Conference of the United 
States is authorized to provide training in negotiated rulemaking techniques and procedures for 
personnel of the Federal Government either on a reimbursable or nonreimbursable basts. Such 
training may be extended to private individuals on a reimbursable basis. 

(0 Payment of Expenses of Agencies. The Chairman of the Administrative Conference 
of the United States is authorized to pay, upon request of an agency, all or part of the expenses 
of establishing a negotiated rulemaking committee and conducting a negotiated rulemaking. Such 
expenses may include, but are not limited to 

(1) the costs of conveners and facilitators; 

(2) the expenses of committee members determined by the agency to be eligible for 
assistance under section S68(c); and 

(3) training costs. 

Determinations with respect to payments under this section shall be at the discretion of 
such Chairman in furthering the use by Federal agencies of negotiated rulemaking. 

(g) Use of Funds of the Conference. The Administrative Conference of the United States 
may apply funds received under section S9S(c)(12) of this title to carry out the purposes of this 
subchapter. 

(Added Pub. L. No. 101-648. §3(a), Nov. 29, 1990, 104 Stat. 4975.) 



§570. Judicial review 

Any agency action relating to establishing, assisting, or terminating a negotiated 
rulemaking committee under this subchapter shall not be subject to judicial review. Nothing in 
this section shall bar judicial review of a rule if such judicial review is otherwise provided by 
law. A rule which is the product of negotiated rulemaking and is subject to judicial review shall 
not be accorded any greater deference by a court than a rule which is the product of other 
rulemaking procedures. 

(Added Pub. L. No. 101-648, §3(a), Nov. 29, 1990, 104 Stot. 4976.) 



84 STATUTORY BASIS 



Negotiated 

Rulemaking 

Act 



Citations: 

5 U.S.C. §§581-590;' enacted November 29, 1990, by Pub. L. 
No. 101-648, 104 Stat. 4969. 



Lead Agency: 

Administrative Conference of the United States, Suite 500, 
2120 L Street NW, Washington, DC 20037 (202) 254-7020. 



Overview: 

The Negotiated Rulemaking Act of 1990 establishes a statutory 
framework for agency use of negotiated rulemaking to formulate 
proposed regulations. The Act supplements the rulemaking 
provisions of the Administrative Procedure Act (see Chapter 1), 
clarifying the authority of federal agencies to conduct negotiated 
rulemaking. It largely codifies the practice of those agencies that 
had previously used the procedure. While not requiring use of the 
technique, the Act allows each agency discretion about using 
negotiated rulemaking. 

Negotiated rulemaking (sometimes known as "regulatory 
negotiation" or "reg-neg") has emerged in the 1980s as an 
alternative to traditional procedures for drafting proposed 
regulations. The essence of the idea is that in certain situations it 
is possible to bring together representatives of the agency and the 



'The Administrative Dispute Resolution Act (see Chapter 3), Pub. L. No. 101-552, 
also contains sections in title 5 of the U.S. Code numbered 581-590. H.R. 2549, I02d 
Congress, Itt session, would remedy this anomaly (see Chapter 3, footnote 1). 



REG-NEG ACT 85 



792 Negotiated Rulemaking Act 



various affected interest groups to negotiate the text of a proposed 
rule. The negotiators try to reach a consensus through a process of 
evaluating their own priorities and making tradeoffs to achieve an 
acceptable outcome on the issues of greatest importance to them. 
If they do achieve a consensus, then the resulting rule is likely to 
be easier to implement and the likelihood of subsequent litigation is 
diminished. Even in the absence of consensus on a draft rule, the 
process may be valuable as a means of better informing the 
regulatory agency of the issues and the concerns of the affected 
interests. 

Negotiated rulemaking should be viewed as a supplement to the 
rulemaking provisions of the Administrative Procedure Act. This 
means that the negotiation sessions generally take place prior to 
issuance of the notice and the opportunity for the public to 
comment on a proposed rule that are required by the Act (5 U.S.C. 
§553). In some instances, negotiations may be appropriate at a 
later stage of the proceeding and have sometimes been used 
effectively in drafting the text of a fmal rule based on comments 
received. 

In 1982 the Administrative Conference of the United States set 
forth criteria for identifying rulemaking situations for which reg- 
neg is likely to be successful (Recommendation 82-4, 1 CFR 
§305.82-4). These criteria were intended to guide agencies in 
making the key determination whether negotiated rulemaking is 
appropriate for particular regulatory problems. The Conference 
also suggested specific procedures to be followed by agencies in 
applying this approach. Additional refinements, based on a study 
of initial agency experiences with reg-neg, were reconmiended in 
1985 (Recommendation 85-5, 1 CFR §305.85-5). 

Much of the Negotiated Rulemaking Act is permissive, 
incorporating many of the criteria and procedures suggested in the 
Conference recommendations. The drafters intended that the Act 
not impair any rights otherwise retained by agencies or parties, and 
section 581 expressly provides that the Act is not intended to limit 
innovation or experimentation with the negotiated rulemaking 
process. Although the Act plainly permits an agency to publish as 
its own the consensus proposal adopted by the negotiating 
committee, nothing in the Act requires the agency to publish either 
a proposed or final rule merely because a negotiating committee 
proposed it. 

Following the recommendations of the Conference, section 583 
of the Act lists several criteria to be considered by agencies in 
determining whether to use negotiated rulemaking in any particular 



86 STATUTORY BASIS 



Negotiated Rulemaking Act 793 



instance. It permits, but does not require, the use of outside 
impartial persons (referred to as "conveners") to assist the agency 
in identifying potential participants in the negotiation process. 
Section 584 requires public notice of planned negotiated 
rulemaking proceedings in the Federal Register and appropriate 
trade and specialized publications. Persons or interests believing 
that they are not adequately r^resented on the negotiating 
committee must be given an opportunity to apply for membership, 
though the agency retains discretion as to whether to grant such 
requests. 

Section S8S makes clear that agencies establishing negotiating 
committees under the Act are also to comply with the Federal 
Advisory Committee Act (see Chapter 10). At least one member 
of the committee must be a representative of the agency. If, after 
considering the public responses to the published notice of intent to 
establish a negotiating committee under the Act, the agency 
determines not to do so, then the agency must publish a notice of 
that fact and the reasons for the decision. 

Section 586 addresses procedures of the negotiating committee 
and provides for selection of a neutral "facilitator" or mediator to 
assist the committee in its deliberations. 

Section 587 permits an agency to keep a negotiating committee 
in existence until promulgation of the fmal rule, but also allows 
earlier termination if the agency or the committee so chooses. 

Options for agencies with respect to acquiring the services of 
conveners and facilitators are addressed in section 588. ^ Agencies 
are authorized to pay expenses of certain committee members in 
accordance with the Federal Advisory Committee Act. Section 589 
authorizes the Conference to pay certain expenses at the request of 
an agency conducting a negotiated rulemaking. (Funding for this 
purpose is authorized by section 4 of the Act.) 

To avoid creating new sources of potential litigation, section 
590 provides that agency actions pertaining to procedural decisions 
in negotiated rulemaking are not subject to judicial review. 
However, otherwise available judicial review of the rules 
promulgated through the negotiation process is not affected by the 
Act. 



^See also Conference Recommendation 86-8, Acquiring the Services of 'Neutrals' for 
Alternative Means of Dispute Resolution, 1 CFR §305.86-8; Ruttinger, Acquiring the 
Services of Neutrals for Alternative Means of Dispute Resolution and Negotiated 
Rulemaking, 1986 ACUS 863. 



REG-NEG ACT 87 



794 Negotiated Rulemaking Act 



Section S of the Negotiated Rulemalcing Act terminates the 
provisions of the Act after 6 years (November 29, 1996). 
Numerous federal agencies conducted negotiated rulemaking 
proceedings under other authority prior to adoption of the 
Negotiated Rulemaking Act. Expiration of this Act clearly does 
not imply that an agency could no longer undertake a negotiated 
rulemaking. 



Legislative History: 

Joint hearings on "regulatory negotiation" were held in July 
1980 by the Senate's Select Committee on Small Business and 
Committee on Governmental Affairs. Legislation was introduced 
in September 1980 "to create a pilot program to encourage . . . 
the formation of regulatory negotiation commissions, comprised of 
representatives of business, public interest organizations, labor. 
State and local officials, and other interested persons, for the 
purpose of making recommendations to Federal agencies on 
regulatory policy." (H.R. 8240, 96th Congress) Other bills to 
establish a statutory framework for negotiated rulemaking were 
introduced in each subsequent Congress throughout the 1980s. 

The first negotiated rulemaking bill to be acted upon was S. 
1504, introduced by Senator Carl Levin in the 100th Congress. 
The Senate Committee on Governmental Affairs held hearings on 
May 13, 1988, and the Senate passed the bill on September 30, 
1988 (134 Cong. Rec. S 13760, September 30, 1988; see also the 
report of the Senate Committee on Governmental Affairs, l(X)th 
Congress, 2d Session, S. Rep. No. l(X)-547). In the House, the 
Judiciary Subcommittee on Administrative Law and Governmental 
Relations held a hearing on August 10, 1988, on a companion bill, 
H.R. 3052, introduced by Representative Donald Pease. No 
further action was taken. 

In the 101st Congress, identical bills, S. 303 and H.R. 743, 
were introduced on January 31, 1989 (135 Cong. Rec. S 862 and 
H 144, January 31, 1989). The Senate Committee on 
Governmental Affairs reported out S. 303 on July 13, 1989, and 
the Senate passed it on August 3, 1989 (see 135 Cong. Rec. S 
10060, August 3, 1989; see also the report of the Senate 
Committee on Governmental Affairs, 101st Congress, 1st Session, 
S. Rep. No. 101-97). 



88 STATUTORY BASIS 



Negotiated Rulemaking Act 795 



The House Subcommittee held a hearing on H.R. 743 on May 
3, 1989, and on February 7, 1990, reported out the bill with 
amendments. The Committee on the Judiciary passed the bill on 
March 28, and the House passed it on May 1 (136 Cong. Rec. H 
1852, May 1, 1990; see also the report of the House Committee on 
the Judiciary, 101st Congress, 2d Session, H. Rep. No. 101-461). 
The Senate amended the bill further and passed S. 303 again on 
October 4 (136 Cong. Rec. S 14580, October 4, 1990). The 
House accepted the Senate amendments, voting final passage on 
October 22 (136 Cong. Rec. H 10966, October 22, 1990). The 
bill was signed by President Bush on November 29, 1990. 

During the period of congressional consideration of the 
Negotiated Rulemaking Act, Congress passed three other pieces of 
legislation that mandated use of negotiated rulemaking: the Carl 
D. Perkins Vocational and Applied Technology Education Act 
Amendments (Pub. L. No. 101-392), the Hawkins-Stafford 
Elementary and Secondary School Improvements Amendments 
(Pub. L. No. 100-297), and the Price-Anderson Amendments Act 
of 1988 (Pub. L. No. 100-408). Each of these laws provided 
specific and widely differing procedures for negotiating rules. In 
the future, the Negotiated Rulemaking Act may serve as a common 
reference whenever Congress wants to use reg-neg in other 
legislation, replacing this ad hoc approach. 



Significant Case Law: 

EPA's final rule on asbestos-containing materials in schools was 
the first reg-neg rule to be challenged in court. The suit was 
brought by the Safe Buildings Alliance, a group representing 
former manufacturers of asbestos building products that are now 
illegal. Plaintiffs in the lawsuit claimed that the rule would 
encourage unnecessary removal of materials from buildings and 
would result in a chaotic situation. They sought a more objective 
standard—based on air monitoring, for example—rather than the 
professional judgment called for under EPA's rule. The Safe 
Buildings Alliance had been represented on the negotiating 
committee. Several other parties who were represented on the 
negotiating committee intervened in support of the final rule as 
published. These included the National Education Association, the 
American Association of School Administrators, and a group of 
state attorneys general. 



REG-NEG ACT 89 



796 Negotiated Rulemaking Act 



In May 1988, the rule was upheld by the U.S. Court of Appeals 
for the D.C. Circuit, Safe Buildings Alliance v. EPA, 846 F. 2d 79 
(D.C. Cir. 1988). The court determined that EPA's regulation 
embodied a reasonable interpretation of the requirements of the 
Asbestos Hazard Emergency Response Act of 1986, Pub. L. No. 
99-519, 15 U.S.C. §§2641-54. Neither the appeal nor the court's 
decision referred to the negotiation procedure that was followed. 
EPA's underground injection rule, based in part on negotiated 
rulemaking, was also challenged and essentially upheld by the 
D.C. Circuit, Natural Resources Defense Council v. EPA, 907 
F.2d 1146 (D.C. Cir. 1990). 



Source Note: 

In 1990 the Administrative Conference of the United States 
published the Negotiated Rulemaking Sourcebook, a step-by-step 
guide to the conduct of negotiated rulemaking proceedings. The 
volume contains a discussion of when and how to use the 
procedure, along with sample notices and other documents that 
may be needed by an agency using the process. Numerous articles, 
both analytical and practical, are reprinted in the Sourcebook, 
including the Harter and Perritt reports to the Conference that 
furnished the research background for Conference 
Recommendations 82-4 and 85-5. An extensive bibliography is 
also included. 



Bibliography: 



I. Legislative History 

1. Regulatory Negotiation: Joint Hearings Before the Senate 
Select Committee on Small Business and the Subcommittee on 
Oversight of Government Management of the Senate Committee on 
Governmental Affairs, 96th Cong., 2d Sess. (1980). 



90 STATUTORY BASIS 



Negotiated Rulemaking Act 797 



2. Negotiated Rulemaking Act of 1987: Hearing before the 
Subcommittee on Administrative Law and Governmental Relations 
of the House Committee on the Judiciary (H.R. 3052), 100th 
Cong., 2d Sess. (1988). 

3. Senate Committee on Governmental Affairs, Negotiated 
Rulemaking Aa of 1988 (S. 1504), Rep. 100-547, 100th Cong., 2d 
Sess. (1988). 

4. Senate Committee on Governmental Affairs, Negotiated 
Rulemaking Aa of 1989 (S. 303), Rep. 101-97, 101st Cong., 1st 
Sess. (1989). 

5. Negotiated Rulemaking Act of 1989: Hearing before the 
Subcommittee on Administrative Law and Governmental Relations 
of the House Committee on the Judiciary (H.R. 743), 101st Cong., 
1st Sess. (1989). 

6. House Committee on the Judiciary, Negotiated Rulemaking 
Act of 1990 (H.R. 743), Rep. 101-461, 101st Cong., 2d Sess. 
(1990). 

7. President's Statement on Signing the Negotiated Rulemaking 
Act of 1990, 26 Weekly Comp. Pres. Doc. 1945 (Nov. 29, 1990). 



LEVIN STATEMENT 91 



STATEMENT OF SENATOR CARL LEVIN 

BEFORE THE HOUSE SUBCOMMITTEE ON 

ADMINISTRATIVE LAW AND GOVERNMENTAL RELATIONS 

ON H.R. 3052, THE NEGOTIATED RULEMAKING ACT 

August 10, 1988 

Mr. Chairman and Members of the Subcommittee, thank you 
for Inviting me to testify today on H.R. 3052, the Negotiated 
Rulemaking Act. This bill, which was introduced by my 
friend. Congressman Don Pease, is a companion to S. 1504, a 
bill which I introduced in the Senate and which recently 
received approval by the Senate Governmental Affairs 
Committee to be reported to the floor for consideration by 
the full Senate. I am delighted that this Subcommittee is 
also considering this matter at this time. 

As you know, negotiated rulemaking is a procedural 
device designed to encourage competing interests voluntarily 
to work together to achieve a consensus position on a 
controversial agency rulemaking. It is a process which 
invites parties who will be significantly affected by an 
agency rule to sit down together and negotiate in good faith 
to develop a draft regulation with which all the affected 
parties can live. Parties who successfully reach agreement 
on a draft then present it to the agency, with the 



92 STATUTORY BASIS 



expectation that the agency will use it as the basis for 
publishing a proposed zrule in the Federal Register. 

This process, called "reg neg" by veteran users, has 
been the subject of Congressional scrutiny since about 1980. 
In that year, I held hearings and introduced a bill to 
encourage agencies to try the process. Congress responded 
then with caution, reasoning that the process was too new and 
untried to warrant legislation. The suggestion was to let 
agencies try the process on their own, to experiment with it, 
and to develop a track record which Congress could then 
evaluate . 

Eight years later we have that track record. A number 
of agencies, including the Environmental Protection Agency, 
the Labor Department, and the Transportation Department, have 
used negotiated rulemaking to develop regulations on such 
varied issues as wood burning stoves, pesticides, benzene 
exposure limits, and working hours for airline pilots. 
Numerous parties have participated in the process, from 
industry to labor to environmental groups to consumers. And 
they agree that negotiated rulemaking is a winner. 

In a hearing held in May before the Senate Governmental 
Affairs Committee, testimony was provided about the 
Government's negotiated rulemaking experiences to date. The 
Committee heard from agencies, rulemaking participants. 



LEVIN STATEMENT 93 



mediators and scholars. The witnesses agreed without 
exception that negotiated rulemaking has proven itself to be 
not only viable, but a very effective process when properly 
employed. Praise for the process included statements that, 
when used in the proper circumstances, negotiated rulemaking 
resulted in agency rules that were more effective, less 
costly, fairer in impact, quicker in achieving final status, 
and less subject to challenge in court. That's quite a track 
record. 

And word is getting around in Congress. Provisions are 
appearing on an ad hoc basis in various bills directing 
agencies to use negotiated rulemaking when developing 
regulations in certain areas. Two examples are H.R. 5, the 
Elementary and Secondary School Improvement Act, now Public 
Law 100-297, which directs the Education Secretary to use reg 
neg to develop regulations required by the Act; and H.R. 
1414, the Price-Anderson Amendments Act, which passed both 
Houses last week and which directs the Nuclear Regulatory 
Commission to use reg neg to resolve certain indemnification 
Issues involving radiopharmaceuticals. 

Given this trend as well as the desirability of 
encouraging proper use of the process, I believe it is time 
to provide a standardized framework for negotiated rule- 
making. The key here is the word "framework." Negotiated 
rulemaking works best when it retains a flexible character 



94 STATUTORY BASIS 



that can be adapted to the exigencies of each rulemaking 
situation. To bind the process too tightly, with too many 
procedural rules, would be to destroy its best feature. 

At the same time, agencies which have not tried reg neg 
want and need cruidance on how to proceed. It is not obvious 
how an agency should conduct a negotiated rulemaking so that 
it is consistent with the Administrative Procedure Act and 
the Federal Advisory Committee Act. These are the types of 
procedural issues which can and should be resolved in a 
uniform manner for all negotiated rulemaking sessions. In 
addition, there is expert information and assistance 
available on reg neg issues which should be made easily 
accessible to all agencies thinking of participating in the 
process. Each of these goals can be achieved through the 
Negotiated Rulemaking Act. 

H.R. 3052 establishes a framework for conducting a 
negotiated rulemaking. First, it requires an agency deciding 
whether to try negotiated rulemaking in a particular setting 
to consider a number of identified factors, such as whether 
there is a limited number of readily identifiable interests, 
whether a consensus is likely to be reached, and whether the 
agency is willing to consider using the consensus position as 
the basis for a proposed agency rule. Experience has shown 
that careful selection of when to use the process is vital to 
the success of a negotiated rulemaking, and the bill provides 



LEVIN STATEMENT 95 



some tested standards and procedures for making that 
decision. 

The bill also resolves key procedural issues, including 
how to publicize an agency decision to use negotiated 
rulemaking in a particular area, how to handle requests for 
additional participants, how to form a rulemaking committee 
in compliance with the Federal Advisory Committee Act, how to 
determine reimbursement of committee expenses, and how to use 
negotiated rulemaking in a manner that is consistent with the 
Administrative Procedure Act ' s requirements for proposed 
agency rules, in addition, the bill assigns to the 
Administrative Conference of the United States the 
responsibility to act as a clearinghouse for information and 
assistance . 

As originally introduced, H.R. 3052 and S. 1504 were 
identical measures. In response to suggestions made by 
witnesses at the April hearing, however, we refined 
provisions in S. 1504 to improve the mechanisms guaranteeing 
flexibility and to reduce red tape. It was this improved 
bill that was ordered reported to the Senate floor. I hope 
the Subcommittee will review this revised bill at the same 
time it is considering the provisions of H.R. 3052. 



96 STATUTORY BASIS 



The potential benefits of the negotiated rulemaking 
process have always been clear. Instead of affected parties 
spending their time and resources litigating a rule drafted 
and imposed by an agency, the affected parties and the agency 
spend their time and energies consftructively developing a 
proposed rule together. The potential result is not only a 
rule which will become effective in less time, but also a 
rule which will be better substantively, since it will 
reflect the involvement of knowledgeable persons who will be 
directly affected by it. 

Eight years ago, there was little evidence that these 
potential benefits of negotiated rulemaking would actually 
accrue. Now, we have a track record of success. Congress 
needs to extend that record of success by encouraging more 
agencies to try negotiated rulemaking under procedures which 
will guide but not inhibit the process. This is legislation 
whose time has come, and I ask this Subcommittee to act on 
H.R. 3052 to help it become law before the 100th Congress 
comes to its close. 



APA §553 97 



§ 553. Rule making 

(a) This section applies, according to the pro- 
visions thereof, except to the extent that there 
is involved— 

(Da military or foreign affairs function of 
the United States; or 

(2) a matter relating to agency management 
or personnel or to public property, loans, 
grants, benefits, or contracts. 

(b) General notice of proposed rule making 
shall be published in the Federal Register, 
unless persons subject thereto are named and 
either personally served or otherwise have 
actual notice thereof in accordance with law. 
The notice shall include— 

(1) a statement of the time, place, and 
nature of public rule making proceedings; 

(2) reference to the legal authority under 
which the rule is proposed; and 

(3) either the terms or substance of the pro- 
posed rule or a description of the subjects and 
issues involved. 

Except when notice or hearing is required by 
statute, this subsection does not apply— 

<A) to interpretative rules, general state- 
ments of policy, or rules of agency organiza- 
tion, procedure, or practice; or 

(B) when the agency for good cause finds 
(and incorporates the finding and a brief 
statement of reasons therefor in the rules 
issued) that notice and public procedure 
thereon are impracticable, unnecessary, or 
contrary to the public interest. 

(c) After notice required by this section, the 
agency shall give Interested persons an oppor- 
tunity to participate in the rule making 
through submission of written data, views, or 
arguments with or without opportunity for oral 
presentation. After consideration of the rele- 
vant matter presented, the agency shall incor- 
porate in the rules adopted a concise general 
statement of their basis and purpose. When 
rules are required by statute to be made on the 
record after opportvmlty for an agency hearing, 
sections 556 and 557 of this title apply instead 
of this subsection. 

(d) The required publication or service of a 
substantive rule shall be made not less than 30 
days before its effective date, except— 

(Da substantive rule which grants or recog- 
nizes an exemption or relieves a restriction; 

(2) interpretative rules and statements of 
policy; or 

(3) as otherwise provided by the agency for 
good cause found and published with the 
rule. 

(e) Each agency shall give an interested 
person the right to petition for the issuance, 
amendment, or repeal of a rule. 

(Pub. L. 89-554. Sept. 6. 1966. 80 Stat. 383.) 



98 



STATUTORY BASIS 



Recommendation 77-3, 1 CFR §305.77-3 



§305.77-3 Ex parte Communications in 
Informal Rulemaldng Proceedings 
(Recommendation No. 77-3). 

In Recommendation 72-5 the Conference 
expressed the view that, generally, agency 
rulemaking is preferably carried out 
through the simple, flexible and efficient 
procedures of 5 U.S.C. 553. That statute re- 
quires publication of notice of proposed 
rulemaking and provision of opportunity for 
submission of written comments: additional 
procedures may be utilized by the agencies 
as they deem necessary or appropriate. Rec- 
ommendation 72-5 counseled that Congress 
ordinarily should not impose mandatory 
procedural requirements going beyond 
those of section 553 in the absence of spe- 
cial reasons for doing so. In Recommenda- 
tion 76-3 the Conference amplified its 1972 
recommendation by suggesting ways in 
which agencies might usefully supplement 
the mintmiiTTi procedures required by sec- 
tion 553 in appropriate circumstances. 

The primary purposes of rulemaking pro- 
cedures under section 553 are to enhance 
the agency's luiowledge of the subject 
matter of the proposed rule and to afford 
all interested persons an adequate opportu- 
nity to provide data, views, and arguments 
with respect to the agency's proposals and 
any alternative proposals of other interest- 
ed persons. Section 553 procedures, in some 
instances, also serve to provide the basis for 
judicial review. To the extent consistent 
with all of these purposes, the agencies 
should have broad discretion to fashion pro- 
cedures appropriate to the nature and im- 
portance of the issues in the proceeding, in 
order to make rules without undue delay or 
expense. Informal rulemaking should not be 
subject to the constraints of the adversary 
process. Ease of access to information and 
opinions, whether by recourse to published 
material, by field research and empirical 
studies, by consultation with informed per- 
sons, or by other means, should not be im- 
paired. 

While the foregoing considerations mili- 
tate against a general prohibition upon ex 
parte conunimlcations in rulemaking sub- 
ject only to section 553, certain restraints 
upon such communications may l>e desira- 
ble. Ex parte communications during the 
rulemaking process can give rise to three 
principal types of concerns. First, decision 
makers may be influenced by commimica- 
tions made privately, thus creating a situa- 
tion seemingly at odds with the widespread 
demand for open government; second, sig- 
nificant information may l>e unavailable to 
reviewing courts; and third. Interested per- 
sons may be unable to reply effectively to 



information, proposals or arguments pre- 
sented in an ex parte communication. In the 
context of section 553 rulemaking, the first 
two problems can be alleviated by placing 
written communications addressed to a rule 
proposal in a public file, and by disclosure 
of significant oral communications by 
means of summaries or other appropriate 
techniques. The very nature of such rule- 
maldng, however, precludes any simple solu- 
tion to the third difficulty. The opportunity 
of interested persons to reply could be fully 
secured only by converting rulemaking pro- 
ceedings into a species of adjudication in 
which such persons were identified, as par- 
ties, and entitled to l>e, at least constructive- 
ly, present when aU information and argu- 
ments are assembled in a record. In general 
rulemaldng, where there may be thousands 
of interested persons and where the issues 
tend to be broad questions of policy with re- 
spect to which Illumination may come from 
a vast variety of sources not specifically 
identifiable, the constraints appropriate for 
adjudication are neither practicable nor de- 
sirable. 

RECOMUiaYDATION 

In rulemaking proceedings subject 
only to the procedural requirements of 
section 553 of the APA: 

1. A general prohibition applicable 
to all agencies against the receipt of 
private oral or written conunvmica- 
tions is undesirable, because it would 
deprive agencies of the flexibility 
needed to fashion rulemaking proce- 
dures appropriate to the issues in- 
volved, and would introduce a degree 
of formality that would, at least in 
most instances, result in procedures 
that are unduly complicated, slow and 
expensive, and, at the same time, per- 
haps not conducive to developing all 
relevant information. 

2. All written communications ad- 
dressed to the merits, received after 
notice of proposed rulemaking and in 
its course, from outside the agency by 
an agency or its personnel participat- 
ing in the decision should be placed 
promptly in a file available for public 
inspection. 

3. Agencies should experiment in ap- 
propriate situations with procedures 
designed to disclose oral communica- 
tions from outside the agency of sig- 
nificant information or argument re- 



ACUS RECOMMENDATION 77-3 99 



specting the merits of proposed rules, 
made to agency personnel participat- 
ing in the decision on the proposed 
rule, by means of summaries promptly 
placed in the public file, meetings 
which the public may attend, or other 
techniques appropriate to their cir- 
cumstances. To the extent that sum- 
maries are utilized they ordinarily 
should identify the source of the com- 
munications, but need not do so when 
the information or argument is cumu- 
lative. Except to the extent the agen- 
cies expressly provide, the provisions 
of this paragraph and the preceding 
paragraph should not be construed to 
create new rights to oral proceedings 
or to extensions of the periods for 
comment on proposed rules. 

4. An agency may properly withhold 
from the public file, and exempt from 
requirements for making summaries, 
information exempt from disclosiu'e 
under the Freedom of Information 
Act. 5 U.S.C. 552. 

5. Agencies or the Congress or the 
courts might conclude of course that 
restrictions on ex parte communica- 
tions in particular proceedings or in 
limited rulemaking categories are ne- 
cessitated by considerations of fairness 
or the needs of Judicial review arising 
from special circumstances. 

(42 FR 54253, Oct. 5, 1977] 



100 



STATUTORY BASIS 



TTIUE 5 APPENDIX, UNITED STATES CODE 



FEDERAL ADVISORY COMMITTEE ACT 

Pub. L. 92-463. Oct. 6. 1972, 86 Stat. 770, as amended by Pub. L. 94-409, S 5(c), Sept. 13, 1976, 90 
Stat. 1247: Pub. L. 96-523. { 2. Dec. 12, 1980, 94 Stat. 3040: Pub. L. 97-375, title n, S 201(c), Dec. 
21, 1982. 96 Stat 1822 



§ I. Short UUe 

This Act may be cited as the "Federal Adviso- 
ry Committee Act". 

Act RcnoiKZD to hi Othsb Sxctions 

The Federal Advisory Committee Act is referred to 
In tiUe 7 sections 4501. 499t. Slid. 2020. 2204b. 2286. 
3152: UUe 8 section 1356: title 10 secUon 867; UUe 12 
secUons 1441, 1701q. 2246: UUe IS sections 78k-l. 776. 
2080. 4802, 4806: UUe 16 sections 410nn-3. 410pp-4. 
460W-12. 460WW-S. 463. 470q. S41g. 1533. 1612. 1826. 
1852. 3602. 3632: Utle 19 secUons 2155. 2605: UUe 20 
section 1221e-l: Utle 22 secUons 2124b. 2194b. 4833; 
tlUe 24 secUon 225b: UUe 29 section 1302: tiUe 33 sec- 
tion 2251: UUe 42 secUons 282. 290aa. 300v-3. 2486h. 
3788. 5816. 6007. 6374c. 6708. 6838. 7234. 10173b. 10248: 
tiUe 43 secUons 1600b. 1739. 1753; UUe 45 secUons 431. 
1116. 1212; UUe 46 App. secUon 1295b: UUe 47 secUon 
332; UUe 49 App. secUon 1903; tiUe 50 App. sections 
2158. 21S8a. 2169. 

S 2. Findings and purpoac 

(a) The Congress finds that there are numer- 
ous committees, boards, commissions, councils, 
and similar groups which have been established 
to advise officers and agencies In the executive 
branch of the Federal Government and that 
they are frequently a useful and beneficial 
means of furnishing expert advice, ideas, and 
diverse opinions to the Federal Government. 

(b) The Congress further finds and declares 
that— 

(1) the need for many existing advisory 
committees has not been adequately re- 
viewed: 

(2) new advisory committees should be es- 
tablished only when they are determined to 
be essential and their number should be Icept 
to the minimum necessary; 

(3) advisory committees should be terminat- 
ed when they are no longer carrying out the 
purposes for which they were established; 

(4) standards and uniform procedures 
should govern the establishment, operation, 
administration, and duration of advisory com- 
mittees; 



(5) the Congress and the public should be 
Icept informed with respect to the number, 
purpose, membership, activities, and cost of 
advisory committees; and 

(6) the function of advisory committees 
should be advisory only, and that all matters 
under their consideration should be deter- 
mined, in accordance with law, by the official, 
agency, or officer involved. 

Executive Order No. 11686 

Ex. Ord. No. 11686. Oct. 7, 1972. 37 PJt. 21421. which 
related to committee management, was superseded by 
Ex. Ord. No. 11769. Feb. 21. 1974. 39 P.R. 7125. former- 
ly set out as a note under this section. 

ExEctmvE Order No. 11769 

Ex. Ord. No. 11769. Feb. 21. 1974. 39 FSl. 7125. 
which related to committee management, was revoked 
by Ex. Ord. No. 12024. Dec. 1, 1977. 42 F.R. 61445, set 
out as a note below. 

Ex. Orb. No. 12024. Tramsfer or Certain Advisory 

CoiOnTTEE FiTNCTIONS 

Ex. Ord. No. 12024. E>ec. 1. 1977. 42 PJt 61445, pro- 
vided: 

By virtue of the authority vested in me by the Con- 
stitution and statutes of the United States of America, 
including the Federal Advisory Committee Act. as 
amended (5 U.S.C. App.). SecUon 301 of TiUe 3 of the 
United States Code. Section 202 of the Budget and Ac- 
counting Procedures Act of 1950 (31 U.S.C. 581c> [31 
U.S.C. 1531], and SecUon 7 of Reorganization Plan No. 
1 of 1977 (42 F.R. 56101 (October 21. 1977)) [set out in 
tills Appendix), and as President of the United States 
of America, in accord with the transfer of advisory 
committee functions from the Office of Management 
and Budget to the General Services Administration 
provided by Reorganization Plan No. 1 of 1977. it is 
hereby ordered as follows: 

Section 1. The transfer, provided by Section 5P of 
Reorganization Plan No. 1 of 1977 (42 F.R. 56101) [set 
out in tills Appendix), of certain funcUons under the 
Federal Advisory Committee Act, as amended (5 
U.S.C. App.). from the Office of Management and 
Budget and Its Director to the Administrator of Gen- 
eral Services is hereby effective. 

Sec. 2. There is hereby delegated to the Administra- 
tor of General Services all the functions vested in the 



FEDERAL ADVISORY COMMITTEE ACT 



101 



President by the Federal Advisory Committee Act, as 
amended, except that, the annual report to the Con- 
gress required by Section 6<c) ot that Act shall be pre- 
pared by the Administrator (or the President's consid- 
eration and transmittal to the Congress. 

Sec. 3. The Director of the Office of Management 
and Budget shall take all actions necessary or appro- 
priate to effectuate the transfer of functions provided 
in this Order, Including the transfer of funds, [>erson- 
nel and [>ositlons, assets, liabilities, contracts, proper- 
ty, records, and other Items related to the functions 
transferred. 

Sk. 4. Executive Order No. 11769 of February 21, 
1974 is hereby revoked. 

Sbc. S. Any rules, regulations, orders, directives, cir- 
culars, or other actions taken pursuant to the func- 
tions transferred or reassigned as provided in this 
Order from the Office of Management and Budget to 
the Administrator of General Services, shall remain in 
effect as II issued by the Administrator until amended, 
modified, or revoked. 

Src. 6. This Order shall be effective November 20, 
1977. 

Jimmy Castek. 

§ 3. Definitions 

For the purpose of this Act— 

(1) The term "Administrator" means the 
Administrator of General Services. 

(2) The term "advisory committee" means 
any conualttee, board, commission, council, 
conference, panel, task force, or other similar 
group, or any subcommittee or other sub- 
group thereof (hereafter in this paragraph re- 
ferred to as "committee"), which is— 

(A) established by statute or reorganiza- 
tion plan, or 

(B) established or utilized by the Presi- 
dent, or 

(C) established or utilized by one or more 
agencies. 

in the interest of obtaining advice or recom- 
mendations for the President or one or more 
agencies or officers of the Federal Govern- 
ment, except that such term excludes (i) the 
Advisory Commission on Intergovernmental 
Relations, (ii) the Commission on Govern- 
ment Procurement, and (iii) any committee 
which is composed wholly of full-time officers 
or employees of the Federal Government. 

(3) The term "agency" has the same mean- 
ing as in section 551(1) of title 5, United 
States Code. 

(4) The term "Presidential advisory commit- 
tee" means an advisory committee which ad- 
vises the President. 

(As amended 1977 Reorg. Plan No. 1, § 5F, eff. 
Nov. 20. 1977. 42 F.R. 56101, 91 SUt. 1634.) 

TRAMSTER or FONCTIONS 

" 'Administrator' means the Administrator of Gener- 
al Services" was substituted for " 'Director* means the 
Director of the Office of Management and Budget" In 
par. (1) pursuant to Reorg. Plan No. 1 of 1977, i SF, 42 
FM. 56101. 91 SUt. 1634, set out in this Appendix, 
which transferred all functions of the Office of Man- 
agement and Budget and the Director thereof relating 
to the Committee Management Secretariat to the Ad- 
ministrator of General Services, effective Nov. 20, 
1977, as provided by section 1 of Ex. Ord. No. 12024, 
Dec. 1. 1977, 42 F.R. 61445. set out under section 2 of 
this Act In this Appendix. 



Commission on Government Procurement 

The Commission on Government Procurement, re- 
ferred to in par. <2Kii), terminated Apr. 30, 1973, pur- 
suant to Pub. L. 91-129, set out as a note under section 
251 of nue 41, Public Contracts. 

§ 4. Applicability; restrictions 

(a) The provisions of this Act or of any rule, 
order, or regulation promulgated under this Act 
shall apply to each advisory committee except 
to the extent that any Act of Congress estab- 
lishing any such advisory committee specifical- 
ly provides otherwise. 

(b) Nothing in this Act shall be construed to 
apply to any advisory committee established or 
utilized by— 

(1) the Central Intelligence Agency; or 

(2) the Federal Reserve System. 

(c) Nothing in this Act shall be construed to 
apply to any local civic group whose primary 
function is that of rendering a public service 
with respect to a Federal program, or any State 
or local committee, council, board, commission, 
or similar group established to advise or make 
recommendations to State or local officials or 
agencies. 

S5. Responsibilities of Congressional committees; 
review; guidelines 

(a) In the exercise of its legislative review 
fimction, each standing committee of the 
Senate and the House of Representatives shall 
make a continuing review of the activities of 
each advisory committee under its jurisdiction 
to determine whether such advisory committee 
should be abolished or merged with any other 
advisory committee, whether the responsibil- 
ities of such advisory committee should be re- 
vised, and whether such advisory committee 
performs a necessary function not already 
being performed. Each such standing commit- 
tee shall take appropriate action to obtain the 
enactment of legislation necessary to carry out 
the purpose of this subsection. 

(b) In considering legislation establishing, or 
authorizing the establishment of any advisory 
committee, each standing committee of the 
Senate and of the House of Representatives 
shall determine, and report such determination 
to the Senate or to the House of Representa- 
tives, as the case may be. whether the functions 
of the proposed advisory committee are being 
or coiUd be performed by one or more agencies 
or by an advisory committee already in exist- 
ence, or by enlarging the mandate of an exist- 
ing advisory committee. Any such legislation 
shaU— 

(1) contain a clearly defined purpose for the 
advisory committee; 

(2) require the membership of the advisory 
committee to be fairly balanced in terms of 
the pK>ints of view represented and the func- 
tions to be performed by the advisory com- 
mittee; 

(3) contain appropriate provisions to assure 
that the advice and recommendations of the 
advisory committee wUl not be inappropriate- 
ly influenced by the appointing authority or 
by any special Interest, but will instead be the 



102 



STATUTORY BASIS 



result of the advisory committee's independ- 
ent Judgment; 

(4) contain provisions dealing with authori- 
zation of appropriations, the date for submis- 
sion of reports (if any), the duration of the 
advisory committee, and the publication of re- 
ports and other materials, to the extent that 
the standing committee determines the provi- 
sions of section 10 of this Act to be inad- 
equate: and 

(5) contain provisions which will assure that 
the advisory committee will have adequate 
staff (either supplied by an agency or em- 
ployed by it), will be provided adequate quar- 
ters, and will have funds available to meet its 
other necessary expenses. 

(c) To the extent they are applicable, the 
guidelines set out in subsection (b) of this sec- 
tion shall be followed by the President, agency 
heads, or other Federal officials in creating an 
advisory committee. 

§ 6. Rcsponsibilitiei of the Pmidcnt; report to Con- 
cresa; annual report to CongrcM; exdiuion 

(a) The President may delegate responsibility 
for evaluating and taking action, where appro- 
priate, with respect to all public recommenda- 
tions made to him by Presidential advisory 
committees. 

(b) Within one year after a Presidential advi- 
sory committee has submitted a public report 
to the President, the President or his delegate 
shall make a report to the Congress stating 
either his proposals for action or his reasons 
for inaction, with respect to the recommenda- 
tions contained in the public report. 

(c) The President shall, not later than De- 
cember 31 of each year, make an annual report 
to the Congress on the activities, status, and 
changes in the composition of advisory commit- 
tees in existence during the preceding fiscal 
year. The report shall contain the name of 
every advisory committee, the date of and au- 
thority for its creation, its termination date or 
the date it is to make a report, its functions, a 
reference to the reports it has submitted, a 
statement of whether it is an ad hoc or continu- 
ing body, the dates of its meetings, the names 
and occupations of its current members, and 
the total estimated annual cost to the United 
States to fund, service, supply, and maintain 
such committee. Such report shall include a list 
of those advisory committees abolished by the 
President, and in the case of advisory commit- 
tees established by statute, a list of those advi- 
sory committees which the President recom- 
mends be abolished together with his reasons 
therefor. The President shall exclude from this 
report any information which, in his Judgment, 
should be withheld for reasons of national secu- 
rity, and he shall include in such report a state- 
ment that such information is excluded. 

(As amended Pub. L. 97-375, UUe II. S 201(c). 
Dec. 21. 1982. 96 Stat. 1822.) 

Amendments 

1982— Subsec. (c). Pub. L. 97-375 substituted provi- 
sion ttiat the President shall, not Uler than Dec. 31 of 
each year, make an annual report to Congress on the 
activities, status, and chances in the composition of 



advisory committees In existence during the preceding 
fiscal year, for provision the President, not later than 
March 31 of each calendar year after 1972, make an 
annual report to Congress on the activities, status, and 
changes in the composition of advisory committees in 
existence during the preceding calendar year. 

ErpECTivE Date or 1982 Amensmert 

Section 21(Kc) of Pub. L. 97-37S provided in part 
that the amendment by Pub. U 97-375 is effective 
July 1. 1983. 

Section RETEaaED to im Other SEcnoNS 

This section is referred to In title 7 sections 2270. 
2284. 

9 7. Responsibilities of the Administrator of General 
Services; Committee Management Secretariat, es- 
tablishment; review; recommendations to Presi- 
dent and Congress: agency cooperation; perform- 
ance guidelines; uniform pay guidelines; travel 
expenses; expense recommendations 

(a) The Administrator shall establish and 
maintain within the General Services Adminis- 
tration a Committee Management Secretariat, 
which shall be responsible for all matters relat- 
ing to advisory committees. 

(b) The Administrator shall, immediately 
after October 6, 1972, institute a comprehensive 
review of the activities and responsibilities of 
each advisory committee to determine— 

(1) whether such committee Is carrying out 
its purpose: 

(2) whether, consistent with the provisions 
of applicable statutes, the responsibilities as- 
signed to it should be revised; 

(3) whether it should be merged with other 
advisory committees; or 

(4) whether it should be abolished. 

The Administrator may from time to time re- 
quest such information as he deems necessary 
to carry out his functions under this subsection. 
Upon the completion of the Administrator's 
review he shall make recommendations to the 
President and to either the agency head or the 
Congress with respect to action he believes 
should be taken. Thereafter, the Administrator 
shall carry out a similar review annually. 
Agency heads shall cooperate with the Admin- 
istrator in making the reviews required by this 
subsection. 

(c) The Administrator shall prescribe admin- 
istrative guidelines and management controls 
applicable to advisory committees, and, to the 
maximum extent feasible, provide advice, as- 
sistance, and guidance to advisory committees 
to improve their performance. In carrying out 
his functions under this subsection, the Admin- 
istrator shall consider the recommendations of 
each agency head with respect to means of im- 
proving the performance of advisory commit- 
tees whose duties are related to such agency. 

(d)(1) The Administrator, after study and 
consultation with the Director of the Office of 
Personnel Management, shall establish guide- 
lines with res[>ect to uniform fair rates of pay 
for comparable services of members, staffs, and 
consultants of advisory committees in a manner 
which gives appropriate recognition to the re- 
sponsibilities and qualifications required and 



FEDERAL ADVISORY COMMITTEE ACT 



103 



other relevant factors. Such regulations shall 
provide that— 

(A) no member of any advisory committee 
or of the staff of any advisory committee 
shall receive compensation at a rate in excess 
of the rate specified for GS-18 of the General 
Schedule under section 5332 of title 5. United 
States Code; 

(B) such members, while engaged in the 
performance of their duties away from their 
homes or regular places of business, may be 
allowed travel expenses, including per diem in 
lieu of subsistence, as authorized by section 
5703 of title 5, United SUtes Code, for per- 
sons employed intermittently in the Govern- 
ment service; and 

(C) such members— 

(i) who are blind or deaf or who otherwise 
qualify as handicapped individuals (within 
the meaning of section 501 of the Rehabili- 
UUon Act of 1973 (29 U.S.C. 794)), and 

(ii) who do not otherwise qualify for 
assistance under section 3102 of title 5, 
United States Code, by reason of being an 
employee of an agency (within the meaning 
of section 3102(a)(1) of such Utle 5). 

may be provided services pursuant to section 
3102 of such title 5 while in performance of 
their advisory committee duties. 

(2) Nothing in this subsection shall prevent— 

(A) an individual who (without regard to his 
service with an advisory committee) is a full- 
time employee of the United States, or 

(B) an individual who immediately before 
his service with an advisory committee was 
such an employee, 

from receiving compensation at the rate at 
which he otherwise would be compensated (or 
was compensated) as a full-time employee of 
the United States. 

(e) The Administrator shall include in budget 
recommendations a summary of the amounts 
he deems necessary for the expenses of adviso- 
ry committees, including the expenses for pub- 
lication of reports where appropriate. 

(As amended 1977 Reorg. Plan No. 1. } 5F. eff. 
Nov. 20, 1977, 42 F.R. 56101. 91 Stat. 1634; 1978 
Reorg. Plan No. 2. { 102, eff. Jan. 1. 1979, 43 
FJ%. 36067, 92 Stat. 3783; Pub. L. 96-523. (2. 
Dec. 12. 1980, 94 Stat. 3040.) 

RemxncEs in Text 

Section 501 of the RehabUiUtion Act of 1973, re- 
ferred to in subsec. (dXlMCXI), U classified to secUon 
791 of TlUe 29, Labor, rather than to secUon 794 of 
Title 29 as shown in text. 

Amsmdmsmts 

1980— Subsec (dKlKO. Pub. L. 96-S23 added subpar. 
<C>. 

Emcrivc Date or 1980 Amzndmxnt 

Amendment by Pub. L. 98-S23 effective sixty days 
after Dec. 12. 1980. see secUon 3 of Pub. L. 96-523, set 
out as a note under section 3102 of tills title. 

TBAMsrsB or Punctiohs 

"Director of the Office of Personnel Management" 
was substituted for "ClvU Senrice Commission" In 
subsec (d) purauant to Reorg. Plan No. 2 of 1978. 
1 102. 43 PJt. 36037. 92 SUt. 3783, set out under sec- 



tion 1101 of this title, which transferred all functions 
vested by statute In the United States Civil Service 
Commission to the Director of the Office of Personnel 
Management (except as otherwise specified), effective 
Jan. 1. 1970, as provided by section 1-102 of Ex. Ord. 
No. 12107. Dec. 28. 1978. 44 F.R. 1055. set out under 
section 1101 of this title. 

"Administrator", "Administrator's", "Administrator 
of General Services", and "General Services Adminis- 
tration" were substituted for "Director". "Director's". 
"Director, Office of Management and Budget", and 
"Office of Management and Budget" in text pursuant 
to Reorg. Plan No. 1 of 1977, { 5P. 42 P.R. 56101. 91 
Stat. 1634, set out In this Api>endlx, which transferred 
all functions of the Office of Management and Budget 
and the Director thereof relating to the Committee 
Management Secretariat to the Administrator of Gen- 
eral Services, effective Nov. 20. 1977, as provided by 
section 1 of Ex. Ord. No. 12024. Dec. 1. 1977, 42 PJt. 
61445. set out imder section 2 of this Act in this Ap- 
pendix. 

Section RxrEiutcD to in Other Sections 

This section Is referred to In title 7 section 5005; title 
12 section 1428a. 

9 8. Responsibilities of agency heads; Advisory Com- 
mittee Management Officer, designation 

(a) Each agency head shall establish uniform 
administrative guidelines and management con- 
trols for advisory committees established by 
that agency, which shall be consistent with di- 
rectives of the Administrator under section 7 
and section 10. Each agency shall maintain sys- 
tematic information on the nature, functions, 
and operations of each advisory committee 
within its Jurisdiction. 

(b) The head of each agency which h^ an ad- 
visory committee shall designate an Advisory 
Committee Management Officer who shall— 

(1) exercise control and supervision over the 
establishment, procedures, and accomplish- 
ments of advisory committees established by 
that agency; 

(2) assemble and maintain the reports, rec- 
ords, and other papers of any such committee 
during its existence; and 

(3) carry out, on behalf of that agency, the 
provisions of section 552 of title 5. United 
States Code, with respect to such reports, rec- 
ords, and other papers. 

(As amended 1977 Reorg. Plan No. 1. § 5F. eff. 
Nov. 20. 1977. 42 F.R. 56101, 91 Stat. 1634.) 

TRANsnai or Functions 

"Administrator", meaning Administrator of General 
Services was substituted for "Director", meaning Di- 
rector of the Office of Management and Budget. In 
subsec. (a) pursuant to Reorg. Plan No. 1 of 1977. S 5F. 
42 F.R. 56101. 91 Stat. 1634. set out In this Appendix, 
which transferred all functions of the Office of Man- 
agement and Budget and the Director thereof relating 
to the Committee Management Secretariat to the Ad- 
mliUstrator of General Services, effective Nov. 20, 
1977. as provided by section 1 of Ex. Ord. No. 12024, 
Dec. 1. 1977. 42 F.R. 61445. set out under section 2 of 
this Act In this Appendix. 

B 9. Establishment and purpose of advisory commit- 
tees; publication in Federal Register; charter 
filing, contents, copy 

(a) No advisory committee shall be estab- 
lished unless such establishment is— 



104 



STATUTORY BASIS 



(1) specifically authorized by statute or by 
the President; or 

(2) determined as a matter of formal record, 
by the head of the agency involved after con- 
sultation with the Administrator, with timely 
notice published in the Federal Register, to 
be in the public interest in connection with 
the performance of duties imposed on that 
agency by law. 

(b) Unless otherwise specificaUy provided by 
statute or Presidential directive, advisory com- 
mittees shall be utilized solely for advisory 
functions. E>etermlnations of action to be taken 
and policy to be expressed with respect to mat- 
ters upon which an advisory committee reports 
or makes recommendations shall be made solely 
by the President or an officer of the Federal 
Government. 

(c) No advisory committee shall meet or take 
any action until an advisory committee charter 
ha£ been filed with (1) the Administrator, in 
the case of Presidential advisory committees, or 
(2) with the head of the agency to whom any 
advisory committee reports and with the stand- 
ing committees of the Senate and of the House 
of Representatives having legislative Jurisdic- 
tion of such agency. Such charter shall contain 
the following Information: 

(A) the committee's official designation; 

(B) the committee's objectives and the 
scope of Its activity: 

(C) the period of time necessary for the 
committee to carry out Its purposes; 

(D) the agency or official to whom the com- 
mittee reports; 

<E) the agency responsible for providing the 
necessary support for the committee; 

<F) a description of the duties for which the 
committee is responsible, and, if such duties 
are not solely advisory, a specification of the 
authority for such functions; 

(C) the estimated annual operating costs in 
dollars and man-years for such committee; 

(H) the estimated number and frequency of 
committee meetings; 

(I) the committee's termination date, if less 
than two years from the date of the commit- 
tee's establishment; and 

(J) the date the charter is fUed. 

A copy of any such charter shall also be fur- 
nished to the Library of Congress. 

(As amended 1977 Reorg. Plan No. 1, { 5F. eff. 
Nov. 20. 1977, 42 F.R. 56101, 91 Stat. 1634.) 

Tramstcr or Functions 

"Administrator", meaning Administrator of General 
Services was substituted for "Director", meaning Di- 
rector of the Office of Management and Budget, in 
subsecs. (a><2) and (c) pursuant to Reorg. Plan No. 1 of 
1977, { 5P. 42 P.R. 56101. 91 SUt. 1634, set out in thU 
Appendix, which transferred all functions of the 
Office of Management and Budget and the Director 
thereof relating to the Committee Management Secre- 
tariat to the Administrator of General Services, effec- 
tive Nov. 20. 1977. as provided by section 1 of Ex. Ord. 
No. 12024, Dec. 1. 1977, 42 F.R. 61445. set out under 
section 2 of this Act in this Appendix. 

Section Retemied to in Other Sections 

This section is referred to in title 7 sections 2270, 
2289. 



6 10. Advisory committee procedures; meetinc*; 
notice, publication in Federal Register; reguU- 
Uons; minutes; certification; annual report; Fed- 
eral officer or employee, attendance 

(a)(1) Each advisory committee meeting shall 
be open to the public. 

(2) Except when the President determines 
otherwise for reasons of national security, 
timely notice of each such meeting shall be 
published In the Federal Register, and the Ad- 
ministrator shall prescribe regulations to pro- 
vide for other types of public notice to Insure 
that all interested persons are notified of such 
meeting prior thereto. 

(3) Interested persons shall be permitted to 
attend, appear before, or file statements with 
any advisory committee, subject to such reason- 
able rules or regulations as the Administrator 
may prescribe. 

(b) Subject to section 552 of title 5. United 
States Code, the records, reports, transcripts, 
minutes, appendixes, working papers, drafts, 
studies, agenda, or other documents which were 
made available to or prepared for or by each 
advisory committee shall be available for public 
inspection and copying at a single location in 
the offices of the advisory committee or the 
agency to which the advisory committee re- 
ports unto the advisory committee ceases to 
exist. 

(c) Detailed minutes of each meeting of each 
advisory committee shall be kept and shall con- 
tain a record of the persons present, a complete 
and accurate description of matters discussed 
and conclusions reached, and copies of all re- 
ports received, issued, or approved by the advi- 
sory committee. The accuracy of all minutes 
shall be certified to by the chairman of the ad- 
visory committee. 

(d) Subsections (a)(1) and (a)(3) of this sec- 
tion shall not apply to any portion of an adviso- 
ry committee meeting where the President, or 
the head of the agency to which the advisory 
committee reports, determines that such por- 
tion of such meeting may be closed to the 
public In accordance with subsection (c) of sec- 
tion 552b of title 5, United Stetes Code. Any 
such determination shall be in writing and shall 
contain the reasons for such determination. If 
such a determination is made, the advisory 
committee shall Issue a report at least annually 
setting forth a summary of its activities and 
such related matters as would be informative to 
the public consistent with the policy of section 
S52(b) of title 5. United States Code. 

(e) There shall be designated &n officer or 
employee of the Federal Government to chair 
or attend each meeting of each advisory com- 
mittee. The officer or employee so designated is 
authorized, whenever he determines it to be in 
the public interest, to adjourn any such meet- 
ing. No advisory committee shall conduct any 
meeting in the absence of that officer or em- 
ployee. 

(f) Advisory committees shall not hold any 
meetings except at the call of, or with the ad- 
vance approved of, a designated officer or em- 
ployee of the Federal Government, and in the 
case of advisory committees (other than Presi- 



FEDERAL ADVISORY COMMITTEE ACT 



105 



dentlal advisory committees), with an agenda 
approved by such officer or employee. 

(As amended Pub. L. 94-409. S5(c), Sept. 13. 

1976. 90 SUt. 1247; 1977 Reorg. Plan No. 1, 
i 5P. eff. Nov. 20. 1977. 42 P.R. 56101. 91 Stat. 
1634.) 

AlfENDMCNTS 

1979— Subsec. (d). Pub. L. 94-409 inserted "portion 
of an" after "to any" and substituted provisions relat- 
ins to determinations for closing to the public such 
portion of the meetinK In accordance with section 
S52b<c) of title 5. for provisions relating to determina- 
tions of matters listed In section 552(b) of title 5. 

ErrscTTVc Date or 1976 Amimdmznt 

Amendment by Pub. L. 94-409 effective 180 days 
after Sept. 13, 1076. see section 6 of Pub. L. 94-409. set 
out as an Effective Date note under section 552b of 
thlsUUe. 

Tkamsteb or Fdmctions 

"Administrator", meaning Administrator of General 
Services was substituted for "Director", meaning Di- 
rector of the Office of Management and Budget, in 
subsec (aX2), (3) pursuant to Reorg. Plan No. 1 of 

1977, I 5P, 42 F.R. 56101. 91 SUt. 1634, set out in this 
Appendix, which transferred all functions of the 
Office of Management and Budget and the Director 
thereof relating to the Committee Management Secre- 
tariat to the Administrator of General Services, effec- 
tive Nov. 20, 1977, as provided by section 1 of Ex. Ord. 
No. 12024, Dec 1, 1977, 42 P.R. 61445, set out under 
section 2 of this Act in this Appendix. 

SccnoM RcmiKXD to in Otheb Scctions 

This section is referred to in title 7 section 5005; title 
19 secUons 2155, 2605: tiUe 20 section 1233h: title 30 
secUon 1229; title 42 secUons 1395ww, 6273; title SO 
App. section 2158a. 

B II. Availability of transcripts; "agency proceeding" 

(a) Except where prohibited by contractual 
agreements entered into prior to the effective 
date of this Act. agencies and advisory commit- 
tees shall make available to any person, at 
actual cost of duplication, copies of transcripts 
of agency proceedings or advisory committee 
meetings. 

(b) As used in this section "agency proceed- 
ing" means any proceeding as defined in section 
551(12) of Utle 5, United States Code. 

RmuENCcs » Text 

Effective date of this Act, referred to in subsec. (a), 
as meaning effective upon expiration of ninety days 
following enactment of Pub. L. 92-463 on Oct. 6. 1972, 
see section 15 of Pub. L. 92-463. 

SiCTioN RxmutED TO iif Othzr Skctiohs 

This section Is referred to in title 15 section 4806: 
UUe 19 sections 2155, 2605; Utle 42 secUon 6273: Utle 
SO App. secUon 21S8a. 

6 12. Fiscal and administralive provisions; record- 
kcepinr. audit; agency support services 

(a) Each agency shaU keep records as will 
fully disclose the disposition of any funds 
which may be at the disposal of its advisory 
committees and the nature and extent of their 
activities. The General Services Administration. 
or such other agency as the President may des- 
ignate, shall maintain financial records with re- 
spect to Presidential advisory committees. The 



Comptroller General of the United States, or 
any of his authorized representatives, shall 
have access, for the purpose of audit and exam- 
ination, to any such records. 

(b) Each agency shall be responsible for pro- 
viding support services for each advisory com- 
mittee established by or reporting to it unless 
the establishing authority provides otherwise. 
Where any such advisory committee reports to 
more than one agency, only one agency shall be 
responsible for support services at any one 
time. In the case of Presidential advisory com- 
mittees, such services may be provided by the 
General Services Administration. 

Section Reterked to in Otheb Sections 
This section is referred to in title 7 section 5005. 

§ 13. ResponsibiliUes of Library of Congress; reports 
and background papers; depository 

Subject to section 552 of title 5. United States 
Code, the Administrator shall provide for the 
filing with the Library of Congress of at least 
eight copies of each report made by every advi- 
sory committee and, where appropriate, back- 
ground papers prepared by consultants. The Li- 
brarian of Congress shall establish a depository 
for such reports and papers where they shall be 
available to public inspection and use. 

(As amended 1977 Reorg. Plan No. 1. § 5F. eff. 
Nov. 20. 1977. 42 F.R. 56101. 91 SUt. 1634.) 

Transfer op Pdnctions 

"Administrator", meaning Administrator of General 
Services was substituted for "Director", meaning Di- 
rector of the Office of Management and Budget, in 
text pursuant to Reorg. Plan No. 1 of 1977, i 5F, 42 
F.R. 56101, 91 SUt. 1634, set out in thU Appendix, 
which transferred all functions of the Office of Man- 
agement and Budget and Che Director thereof relating 
to the Committee Management SecreUriat to the Ad- 
ministrator of General Services, effective Nov. 20, 
1977, as provided by section 1 of Ex. Ord. No. 12024, 
Dec. 1, 1977, 42 P.R. 61445, set out under section 2 of 
this Act in this Appendix. 

8 14. Termination of advisory committees; renewal; 
conUnuaUon 

(a)(1) Each advisory committee which is in 
existence on the effective date of ttiis Act shall 
terminate not later than the expiration of the 
two-year period following such effective date 
unless— 

(A) in the case of an advisory committee es- 
tablished by the President or an officer of the 
Federal Government, such advisory commit- 
tee is renewed by the President or that officer 
by appropriate action prior to the expiration 
of such two-year period; or 

(B) in the case of an advisory committee es- 
tablished by an Act of Congress, its duration 
is otherwise provided for by law. 

(2) Each advisory committee established after 
such effective date shall terminate not later 
than the expiration of the two-year period be- 
ginning on the date of its establishment 
unless — 

(A) in the case of an advisory committee es- 
tablished by the President or an officer of the 
Federal Government, such advisory commit- 



106 STATUTORY BASIS 



tee is renewed by the President or such offi- 
cer by appropriate action prior to the end of 
such period: or 

(B) In the case of an advisory committee es- 
tablished by an Act of Congress, its duration 
is otherwise provided for by law. 

(bXl) Upon the renewal of any advisory com- 
mittee, such advisory committee shall file a 
charter In accordance with section 9(c). 

(2) Any advisory committee established by an 
Act of ConRress shall file a charter In accord- 
ance with such section upon the expiration of 
each successive two-year period following the 
date of enactment of the Act establishing such 
advisory committee. 

(3) No advisory committee required under 
this subsection to file a charter shall take any 
action (other than preparation and filing of 
such charter) prior to the date on which such 
charter is filed. 

(c) Any advisory committee which is renewed 
by the President or any officer of the Federal 
Government may be continued only for succes- 
sive two-year periods by appropriate action 
taken by the President or such officer prior to 
the date on which such advisory committee 
would otherwise terminate. 

RSrSRKHCES ni Tkxt 

Effective date of this Act. referred to in subsec. 
(aXl). as meaning effective upon expiration of ninety 
days following enactment of Pub. U 92-463 on Oct. 6. 
1972. see secUon 15 of Pub. L. 92-463. 



SccnoN Rirxaan) to ui Othzr Sbctioics 
Thto secUon U referred to In section 8473 of this 
UUe- UUe 7 secUon 5005; UUe 15 secUon 4603: UUe 16 
aecUons 410nn-3. 410oo-5. 410<jQ-2, 460ww-S, 1274: 
UUe 29 secUon 1142; UUe 33 secUon 2251; UUe 42 sec- 
tions 218, 254J, 292b. 300J-5. 300v-3: UUe 49 App. sec- 
Uon ie07c 

S 15. EffccUve date 

Except as provided In section 7(b), this Act 
shall become effective upon the expiration of 
ninety days following October 6, 1972. 



GSA ADVISORY COMMITTEE RULE 



107 



52 Fed. Reg. 45926 (Dec. 2, 1987) 



GENERAL SERVICES 
ADMINISTRATION 

41 CFR Part 101-6 
[FPMR Amendment A-40] 

Federal Advisory Committee 
Management 

agency: O^ice of Administration. GSA. 
action: Final rule. 

summary: This final rule provides 
administrative and interpretive 
guidelines and management controls for 
Federal agencies concerning the 
implementation of the Federal Advisory 
Committee Act. as amended (5 U.S.C., 
App.) (hereinafter "the Act"). In a 
previous issue of the Federal Register. 
GSA published an interim fmal rule on 
the management of Federal advisory 
committees and requested comments (48 
FR 19324: April 28. 1983). Additional 
comments were requested through an 
advance notice of proposed rulemaking 
published in the Federal Register on 
February 13, 1987 (52 FR 4631). A new 
proposed rule, removing suggested 
limitations on the size of Federal 
advisory committees, eliminating 
requirements for the provision of 
updated committee membership data on 
a quarterly basis and restrictions on the 
compensation of committee members, 
and reflecting other actions to 
streamline compliance with the Act, was 
published in the Federal Register on 
May 19. 1987 (52 FR 18774). with a 90- 
day comment period ending on August 
17. All comments received were 
considered in formulating this Hnal rule 
which is intended to improve the 
management and use of Federal 
advisory committees in the Executive 
Branch of the Federal Government. 
EFFECTIVE DATE: January 4. 1988. 
ADDRESSES: General Services 
Administration, Committee Management 
Secretariat (CTM). Washington. DC 
20405. 



Copies of all comments received are 
available for public inspection in Room 
7030 of the General Services Building. 
18th and F Streets NW., Washington, 
DC 

FOR FURTHER INFORMATION CONTACT: 

James L Dean, Director, Committee 
Management Secretariat, Office of 
Management Services, Office of 
Administration, General Services 
Administration, Washington, DC 20405 
(202) 523-1343. 

SUPPLEMENTARY INFORMATION: 
Background 

GSA's authority for administering the 
Act is contained in section 7 of the Act 
and Executive Order 12024 (42 FR 61445, 
3 CFR, 1977 Comp., p. 158). Under 
Executive Order 12024, the President 
delegated to the Administrator of 
General Services all of the functions 
vested in the President by the Act. as 
amended, except that the Annual Report 
to the Congress required by Section 6(c} 
shall be prepared by the Administrator 
for the President's consideration and 
transmittal to the Congress. 

Discussion of Comments 

As stated above. GSA issued a 
proposed rule on the management of 
Federal advisory committees in the 
Federal Register and invited comments. 
Nineteen commenters responded. Seven 
commenters had no substantive 
recommendations and were fully 
supportive of the proposed rule. Twelve 
others offered suggestions for improving 
numerous sections and the disposition 
of these recommendations is addressed 
as follows: 

Clarify the Distinction Between 
Operational as Opposed to Advisory 
Committees 

Two commenters suggested that 
further guidance in the final rule was 
necessary to assist agencies in 
interpreting what constitutes primarily 



108 



STATUTORY BASIS 



an operational committee as opposed to 
one which performs only advisory 
functions, in order to determine 
coverage under the Act. Accordingly, 
GSA has added language to § 101- 
6.1004(g) in the final rule which more 
fully describes what, in general, 
constitutes operational functions. 

While the legislative history of the 
Act contains the concept for the 
exclusion of operational committees, 
there is no precise legal definition of 
operational committee in either the Act 
or its legislative history. GSA believes 
that operational functions to be 
performed by an advisory committee 
must be so authorized by law, since the 
making or implementation of 
Government decisions is normally 
reserved to Federal officials as opposed 
to advisory committees. Additionally, 
sections 2(b)(6) and 9(b) of the Act 
provide that, unless specifically 
provided by statute or Presidential 
directive, advisory committees may not 
make determinations or express policy 
in matters under their consideration. 
Given the additional language in this 
final rule, GSA believes that it will be 
easier for agencies to identify 
committees which perform primarily 
operational functions. 

Provide for Coverage Under the Act 
When Certain Groups Provide 
Consensus or Recurrent Advice 

One commenter stated that the 
language in § 101-6.1004 (i) and (j) of the 
proposed rule was too tentative to 
specifically provide that acceptance of 
consensus advice or advice on a 
recurring basis from certain groups were 
determinants for coverage under the 
Act. GSA has accepted these 
suggestions and has strengthened the 
wording of these sections in the final 
rule. 

Agencies are, in effect, cautioned that 
the Act would apply when an agency 
accepts the deliberations of a group as a 
source of consensus advice, when 
heretofore the agency had been 
obtaining the advice of attendees on an 
individual basis only. Also, when an 



agency recurrently uses a group at the 
group's request, as a source of advice on 
a preferential basis, exclusion of 
coverage under the Act may become 
questionable even if the group continues 
only to express its own views without 
further solicitations from Federal 
officials. 

Strengthen the Provision for Excluding 
Coverage of So-Called Fact-Finding 
Subgroups 

Several commenters were of the 
opinion that so-called fact-finding 
subgroups should continue to be 
excluded from coverage under the Act. 
However, it was their general consensus 
that § 101-6.1004(k) of the proposed rule 
was less than clear in including both the 
members of an advisory committee and 
any of its subcommittee members in this 
exclusion. One commenter felt strongly 
that this exclusion should apply to all 
members of an advisory committee and 
its subcommittees, whether or not the 
subcommittee members are members of 
the parent committee. GSA agrees with 
this recommendation since it parallels 
the language and intent expressed in 
§ 101-6.1007(b) (3) and (4) which clarify 
certain requirements applicable to 
subcommittees. GSA has reworded the 
definition of "Advisory Committee" in 
§ 101.6.1003 of the final rule to follow 
more precisely the language in section 
3(2) of the Act, and has been more 
consistent in the use of the term 
"subcommittee" in § 101-6.1004(k) and 
§ 101-6.1007(b)(3) of the final rule. 

Another commenter felt that the 
language in § 101-6.1004{k) was not 
strong enough to preclude fact-finding 
subgroups from preparing what 
ultimately becomes the advice and 
recommendations of the chartered 
advisory committee, as opposed to 



45927 

simply gathering information and 
analyzing facts for the committee. GSA 
has modified the language in this 
provision to clarify that the results of 
such fact-finding activities are to be 
subject to the deliberation of a chartered 



J 



GSA ADVISORY COMMITTEE RULE 



109 



advisory committee, or a subcommittee 
when subsequently conducting a 
meeting under the Act. 

Provide Additional Guidance on the 
Requirements Applicable to 
Subcommittees 

One commenter requested that the 
final rule provide additional guidance on 
the applicability ol various requirements 
of the Act to subcommittees. Since the 
deTmitioQ of "advisory committee" in 
section 3(2) of the Act specifically 
includes "* • * any subcommittee or 
other subgroup thereof * * *", GSA 
believes all requirements of advisory 
committees in the Act also apply to 
subcommittees. Furthermore, the Act 
itself contains no provisions for 
subcommittees which differ from those 
applicable to a full or parent conmiittee. 
Ahsent more specific language in the 
Act. additkmat guidance by GSA which 
might serve to differentiate any 
requirements of subcommittees from 
those of advisory committees would be 
inconsistent with the Act. 

Exclude From Coverage Under the Act 
Croups Convened by Agencies on an Ad 
Hoc Basis 

One commenter xecommended that 
the final rule contain an exclusion from 
coverage under tiie Act for so-called ad 
hoc groups 1ackn\g formal organization, 
structure, or continuing existence; 
convened by an agency to obtain views 
OD .particular matters of immediate 
concern. GSA is of the opinion that such 
an exclusion is not appropriate since the 
Act itself neither defines nor specifically 
excludes such groups. In fact, section 
6(c) of the Act, providing £or the 
President's annual report to the 
Congress, requires a statement for each 
advisory committee, "* • • of whether it 
is an ad hoc or continuing body * * ***. 
Accordingly, GSA has not accepted the 
recommendation to exclude ad hoc 
groups since GSA believes that the 
language of section 6(c) of the Act 
evidences the Intent of the Congress that 
a group is not to be excluded from 
coverage merely because it is convened 
on an ad hoc, or temporary basis. 



Provide That Agencies May Exercise 
Policy Decisions in Issuing Exclusions 
for One-Time Meetings 

In a comment directed toward GSA's 
position stated in the discussion of prior 
comments in the proposed r\ile [see 52 

FR 18774, SUPPLEMENTARV 
INFORMATION:), a commenter suggested 
that the final rule should not preclude 
agencies from issuing an exclusion for 
one-time meetings. This commenter felt 
that GSA's opinion, that such an 
exclusion in the rule was not 
appropriate in view of the limited 
litigation history, should not bar 
agencies from issuing such exclusions. 
In fact, it was the opinion of this 
commenter that the absence of litigation 
history was not sufficient reason to limit 
management discretion. 

GSA continues to beUeve that a one- 
time meeting exclusion in the final rule 
would be inconsistent with the Act, and 
does not intend to provide either a 
direct exclusion in § 101-6.1004 or 
provide that such a decision may be left 
to an agency, thereby implying GSA's 
support for such exclusions. 
Accordingly, GSA reiterates its opinion 
that in the absence of any judicial 
precedent to the contrary, meetings or 
groups which take place or meet only 
once should not be excluded from the 
Acfs coverage solely on this basis. 

Eliminate the Agency Requirement to 
Asse^ Daplication of Advisory 
Committees an a CovemmeatwJde Basis 

Two commenters pointed out the 
impracticability of requiring an agency 
to assess dupUcation of effort of already 
existing committees on a 
Governmentwide basis as opposed to an 
individual agency basis. Both 
commenters further asserted that this 
Governmentwide role could be 
performed by GSA during its own 
review process subsequent to the receipt 
of the agency's proposal in accordance 
with § 101-6.1G07{b) of the rule. 

Since GSA is responsible for 
reviewing and maintaining data on all 
advisory committees in every agency 
pursuant to several provisions of the 
Act, GSA agrees that it can effectively 
perform this function. GSA can also 



110 



STATUTORY BASIS 



provide agencies, on request, 
information on other agency committees 
relative to potential duplication of effort 
issues. 

GSA has rewritten the language in 
§ 101-6.1007 (a) and (b}(2)rii) of the final 
rule to reflect this concept by providing 
that an agency only consider the 
functions of a proposed committee for 
duplication of existing committees in the 
same agency. 

Include the Agency's Plan for Balanced 
Membership in Federal Register Notices 
and Charters 

One commenter suggested that an 
agency's plan to attain balanced 
membership for a proposed advisory 
committee, to be submitted in 
conjunction with the review required by 
§ 101-6.1007(b) of the proposed ruk, 
should be included in both the Federal 
Register notice of establishment and in 
the filed charter. 

GSA has not adopted this suggestion 
for two reasons. First the agency letter 
proposing the -establishment of an 
advisory committee under general 
agency authority already contains this 
information, as specified by § 101- 
6.1007[bl(2)(iii) of the rule, and this letter 
would be a public record following the 
establishment of the advisory 
committee. Second, inclusion of this 
information in the Federal Jlegisler 
notice of establislunent and the filed 
charter is not specifically required under 
sections 9 (a}[2j and ^c] of the Act For 
purposes of this comment CSA has not 
altered § 101-€.1007(b)(l) or § 101- 
6.1015(a)(1) of the final rule. 

Provide Additional Guidance on 
Balanced Representation -and Selection 
of Members 

One commenter was concerned that 
the proposed rule did not contain 
sufficient guidance on balanced 
representation and the selection of 
members, and suggested that flie fmal 
rule provide additional instructions for 
agencies to follow in these areas. GSA 
recognizes that the giridetines in the 
proposed nde are Innited to the 
language of the Act. However. GSA 
believes that the provisions of section 



5(c) of flie Act are broad enough to 
allow agency discretion in determining 
advisory committee representation and 
membership relative to applicable 
statutes. Executive Orders, and the 
needs of the aigency responsible for the 
committee. Accordingly, GSA wU retain 
the proposed guidelines in the final rule 
based on the language of the Act 

Provide Revised Recordkeeping 
Requirements 

Two comm^iters. direcdy or 
indirectly, expressed concern over the 
recordkeeping requirements contained 
in the proposed rule. One commenter 
observed that it was not possible for the 
Committee Management Officer (CMO) 
to ensure comphance with sections 
10(b). 12(a) and 13 of the Act as 
required by § 1G1-6J1017. Section W(b] 
of the Act requires that the records of an 
advisory committee shall be available at 
a single location at the advisory 
committee or the agency to which it 
reports during the committee's 
existertce. This commenter suggested 
that GSA relax the requirement of 
§ 101-6.1017. 

Another commenter, taking a different 
view, complained of the haphazard 
approach by agencies to the public 

45928 

availability and retention of advisory 
committee records. This commenter 
recommended that the regulations be 
strengthened in these aspects. 

For the following reasons, GSA has 
determined not to adopt the specific 
suggestions of either commenter. First, 
section 8(b)(2) of the Act provides that 
the CMO shall "assemble and maintain 
the reports, records, and other papers of 
any such committee during its 
existence." When sections 8(b)(2) and 
10(b) are read together, it is clear that 
the records of an advisory committee 
are to be available at a single location 
and it is the CMO who is responsible for 
ensuring that this is accomplished. GSA 
has therefore decided against relaxing 
the requirements of § 101-6.1017 in the 
final rule. 



GSA ADVISORY COMMITTEE RULE 



111 



The commenter who expressed 
concern over the haphazard approach to 
recordkeeping suggested that the Hnal 
rule should: (1) Require agencies to keep 
committee records available for a 
certain period of time after a committee 
has terminated, and (2) address the 
perceived unavailability of the 
deliberative process privilege under the 
fifth exemption of the Freedom of 
Information Act (FOIA) to advisory 
committee records. For the following 
reasons, GSA has not adopted these 
comments. 

First, pursuant to the National 
Archives and Records Administration 
Act of 1984. as amended. Pub. L 98-497, 
the Archivist of the United States is 
responsible for records management in 
the Federal Government, including the 
issuance of regulations and guidance for 
records retention and disposition, as 
well as the process for identifying 
records appropriate for transfer to the 
permanent Archives of the United 
States. Since the Federal Advisory 
Committee Act is silent on records 
disposition for advisory committees, we 
see no reason or basis for GSA to alter 
normal Govemmentwide procedures in 
this area which are the responsibility of 
the Archivist of the United States. 
Second, the commenter suggested that 
the Government's settlement of the law 
suit involving records of the Attorney 
General's Commission on Pornography 
was a concession that the deliberative 
process privilege under the Fifth 
exemption of FOIA does not apply to 
advisory committees. Since cases may 
be settled for a variety of reasons which 
do not involve a decision on the merits, 
GSA does not believe that the mere 
settlement of a matter in litigation is 
dispositive of the legal issues raised in 
the litigation. Accordingly. GSA has 
determined not to adopt this suggestion. 

Provide Guidance to Agencies 
Concerning the Applicability of the 
Anti-Lobbying Statute and Hatch Act to 
Advisory Committee Members 

With respect to § 101-6.1033 of the 
proposed rule, one commenter stated 
that unless provided by statute, agencies 



should not compensate advisory 
committee members if they provide 
policy advice on proposals for 
legislation because this compensation 
would violate the anti-lobbying statute. 
(See 18 U.S.C. 1913). The same 
conmienter also stated that GSA should 
direct agencies to ensure that any 
members of an advisory committee who 
are subject to the Hatch Act (5 U.S.C. 
7321-7328) are aware of their obligations 
imder that law. 

For the following reasons, GSA has 
adopted neither suggestion. First. GSA 
does not believe that the traditional 
activities of an advisory committee fall 
within the scope of the activities which 
18 U.S.C. 1913 was designed to protect 
against. Second, the Federal Advisory 
Committee Act itself does not reference 
the Hatch Act, and there is already a 
body of regulations on political 
activities by Federal employees which 
has been issued by the Office of 
Personnel Management. 5 CFR Part 733. 
Also, the Special Counsel of the Merit 
Systems Protection Board, who has 
responsibilities for investigation and 
administrative prosecution of alleged 
Hatch Act violations, issues advisory 
opinions on Hatch Act questions. GSA 
sees no need to issue regulations in this 
area when there are already regulations 
in place and an administrative 
mechanism available through agencies 
with greater responsibilities in this area 
than GSA. 

Clarify the Procedures for Transmitting 
Follow-up Reports on Presidential 
Advisory Committee Recommendations 

One commenter requested 
clariHcation in § 101-6.1035(a) of the 
proposed rule on the procedures 
required for transmittal of follow-up 
reports to the Congress on the 
disposition of Presidential advisory 
committee recommendations, as 
required by section 6(b) of the Act. GSA 
has decided to retain the proposed 
language in the final rule without further 
modification at this time. GSA agrees 
that there has been some confusion as to 
whether the agency responsible for 
supporting the Presidential advisory 



112 



STATUTORY BASIS 



committee, or GSA. should transmit the 
report. GSA intends to propose further 
guidance in a future revision to this final 
rule following more consultation with 
the affected agencies. 

Procedural and Administrative 
Comments 

The final rule incorporates numerous 
technical and procedural 
recommendations made by several 
commenters, particularly in the 
following sections: 



101-6.1017 

101-6.1019 

101-6.1027(a)(3) 

101-«.1029(a)(1) 
101-6.1031(8) 

101-6.1031(b) 



Eliminates sentence concerning files to 
preclude misinterpretation. 

Clanfies the status and role of the 
Designated Federal Officer. 

Specifies Ifie means by which the 
President or an agertcy f>ead termi- 
nates a committee. 

Clarifies the process involving tha re- 
cfurtering of committees specifically 
directed by law whose duration ex- 
tends beyond 2 years. 

Corrects headir^ of section to enconv- 
pass committees authorued by law; 
specifies tfiat the agency head is 
responsit>le for minor charter amend- 
menis. 

Specifies that the ager>cy head retains 
final authority for amerxling certain 
charters. 



Section 


Modification 


101-6.1007(b)(2) 


t^equtres proposed charier with agency 




letter. 


101-6.1007(d)(1) 


Provides that date of ctiarter filing con- 




stitutes date of establishment. 


101-6.1013 (a)(3) 


Eliminates proposed requirement for 


and (c)(3). 


providing copies of tilmg letters to 




GSA by adding provision for filing 




dates on cfiarters: makes related 




change to copws o( Presidential advi- 




sory commtte* ctiarters furnished to 




the Congress. 


101-6.1015 (a)(2) 


Provides for timely notices in the Fed- 


and (b)(1). 


•rat Register on a calendar-day 




basis. 


101-6.1017 (a) 


Adds re<juirements that membership 


and(d). 


lists and closed meebng detarmtna- 




tior>s be irKluded in records. 


101-6.1025(b) 


Adds requirement from section 10(c) of 




the Ad on the certification to the 




accuracy o* minutes of meetings. 


101-6.1027(b) 


Adds requ»emeot to notify Secretariat 




wtien an agency head terminates a 




committee. 


101-6.1035(d) 


Provides for location lor filing copies o( 




report* with the Library of Congress. 



Other sections were also amended or 
revised for clarity of intent, or corrected 
for errors in content and format. 

These sections include: 



101-«.1002(d).... 



101- 
6.1007(b)(2)(iii). 



101-6.1009 



101-6.1013(b) 

101-6.1015(a)(1). 



Oiange* citation of "tfie Act" to ttta 
Government in the Sunshirw Act 

Clanfies provision for considering the 
selection ol members with respect to 
attaining balanc*. 

Corrects title ol section to preclude 
inadvertent exclusion of commil;ees 
directed or authorized by latar, or es- 
tablished by the President 

Corrects heading of section to preclude 
irtadverteni exclusion of committees 
auttKXized by law. 

Clanfies provision that a Federal Reg- 
ister notice of establishmeni is not 
required for committees speoficaUy 
directed by law or established by the 
President 



Additional Instructions 

Pursuant to section 7(d) of the Act, the 
guidelines contained in this final rule 



45929 

with respect to uniform fair rates of pay 
for comparable services for members, 
staffs and consultants of advisory 
committees have been established after 
consultation by the Administrator with 
the Director, Office of Personnel 
Management. 

Executive Order 12291 

GSA has determined that this final 
rule is not a major rule for purposes of 
Executive Order 12291 of February 17. 
1981, because it will not result in an 
annual effect on the economy of $100 
million ormor^, wlU not cause a major 
increase in costs io cojisumers or others, 
and will not have significant adverse 
effects. GSA lias based all 
administrative decisions on this final 
rule on adequate information concerning 
the need for and consequences of this 
final rule. GSA "has also determined that 
the potential benefits to society from 
this final rule far outweigh the potential 
costs, has maxtmized the net benefits, 
and has chosen the alternative involving 
the least net -cost to society. 

Regulatory Plexibility Act 

These regulations are not subject to 
the regulatory flexibility analysis or 
other requirements of 5 U.S.C. 603 and 
604. 



GSA ADVISORY COMMITTEE RULE 



113 



List of Subjects in 41 CFR Part 101-6 

CivQ rigbts. Government property 
managemeat. Grant pu-ograms. 
Intergoverxunental relations. Surplus 
Government property, Relocation 
assistance, Real property acquisition. 
Federal advisory committees. 

Accordingly, 41 CFR Part 101-^ Is 
amended »s follows: 

PART tOt-6— MISCELLANEOUS 
REGULATIONS 

1. The authority citation for 41 CFR 
Part 101-6 continues to read as follows: 

Authority: Sec. 205(c). 63 Stat. 390; 40 
U.S.C. 486(c): sec 7, 5 U.S.C.. App;; and E.O. 
12024. 3 CFR 1977 Comp.. p. 158. 

2. Subpart 101-6.10 is revised to read 
as follows: 

Subpart 101-6.10 — ^Federal Advisory 
Committee Management 

Sec 

101-6.1001 Scope. 

101-6.1002 Policy. 

101-6.1003 Definitions. 

101-6.1004 Examples of advisory meetings 

or groups not covered by the Act or this 

subpart. 
101-6.1005 Authorities for establishment of 

advisory committees. 
101-6.1006 jReservedJ 
101-6.1007 Agency procedures for 

establishing advisory committees. 
101-6.1008 The role of GSA. 
101-6.1009 Responsibilities of an agency 

head. 
101-6.1010 (Reserved] 
101-6.1011 Responsibilities of the 

chairperson of an independent 

Presidential advisory oonunitlee. 
101-6.1012 JReservedJ 
101-6.1013 Charter filing requirements. 
101-6.1014 JKeservedJ 
101-6.1015 Advisory committee information 

which must be published in the Federal 

Register. 
101-6.1016 [ReservedJ 
101-6^017 Reaponsibrlittes of the agency 

Committee Management Officer. 
101-6.1018 jRcserved) 
101-6.1019 Duties of the Designated Federal 

Officer. 
101-6.1020 (Reserved) 
101-6.1021 Public participation m advisory 

committee nieetings. 
101-6.1022 (ReservedJ 



Sec. 

101-6.1023 Procedures for closing an 

advisory oommittee meeting. 
101-6.1024 (ReservedJ 
101-6.1025 ilequiremenl for mairUaining 

minutes of advisory committee meetings. 
101-6.1026 [ReservedJ 
101-6.1027 Temrinartion of advisory 

committees. 
101^.1028 (Reserved] 
101-4.3029 Renewal and icchartering of 

advisory committees. 
101-6.1030 (ReservedJ 
101-6.1031 Amendments to advisory 

committee charters. 
101-6.1032 (Reserved] 
101-6.1033 Compensation and expense 

Termbnrsement trf advisory committee 

members, staffs and consultants. 
101-6.1034 i[ReBervedJ 
101-6.1035 Reports required ioT advisory 

corruniltees. 

§ 101-6.1001 Scope. 

(a] This subpart defines the policies, 
establish minimum requirements, and 
provide guidance to agency management 
for the establishment, operation, 
administration, and duration of advisory 
committees subject to the Federal 
Advisory Committee Act, as amended. 
Reporting requirements which Iceep the 
Congress and the public Informed of the 
number, purpose, membership, 
activities, and cost of these advisory 
committees are also included. 

(bj The Act and this subpart do not 
apply to advisory meetings or groups 
listed in § 101-6.1004. 

§ 101-6.1002 Policy. 

The policy to be followed by Federal 
departments, agencies, and 
commissions, consistent with the 
Federal Advisory Committee Act, as 
amended, is as follows: 

(aj An advisory committee shall be 
established only when it is essential to 
the conduct of agency business. 
Decision criteria include whether 
committee deliberations will result in 
the creation or elimination of, or change 
in regulations, guidelirtes, or rules 
affecting agency business: whether the 
information to be obtained is already 
available through another advisory 
committee or source within the Federal 
GovemmenU whether the committee 
will make recommendations resulting in 



114 



STATUTORY BASIS 



significant improvements in service or 
reductkons in cost; or whether the 
committee's recomntendations will 
provide an important additional 
perspective or viewpoint impacting 
agency operations; 

(b) An advisory committee shall be 
tenninaled whenever the stated 
objectives of the committee have been 
accomplished; the subject matter or 
work of the commitlee has become 
obsolete by the passing of time or the 
assumption of the committee's jnaiu 
functions by another entity within the 
Federal Government; or the agency 
determines that ihe cost of operation is 
excessive in relation to the benefits 
accruing to the Federal Government; 

(cj An advisory committee shall be 
balanced in its membership in >terms of 
the poiiUs of view represented and the 
functions to be perforiaect; and 

^d) An advisory coounittee shall <be 
open to the public in its meetings exoepit 
in those -circumstances where a closed 
meeting shall be 'determined proper and 
consistent with the provisions in the 
Government in the Sunshine Act. 5 
USXl 552(b). 

§ 101-6. t003 Definitions. 

"Act" means the federal Advisory 
Committee Act, as Amended. 5 U.S.C 
App. 

"AdministFator** means the 
Administrator of General Services. 

"Advisory committee" subject to the 
Act means any committee, boai^ 
commission, oound'L conference, panel, 
task force, or other similar group, or any 
subcommittee or other subgroup thereof, 
which is established by statute, or 
established or utilized by the President 
or any agency official for the purpose of 
obtaining advice or recommendations 
on issues or policies which are within 
the scope of his or her responsibilities. 

"Agency" has the same meaning as in 
section 551(1) of Title 5 of the United 
States Code. 

"Committee Management Secretariat" 
("Secretariat"), established pursuant to 
the Act is responsible for all matters 
relating to advisory -committees, and 
carries out the Administrator's 



responsibihties under the Act and 
Executive Order 12024. 

"Committee member" means an 
individual who serves by appointment 
on an advisory committee and has the 

45930 

full right and obligation to participate in 
the activities of the committee, including 
voting on committee recommendations. 

"Presidential advisory committee" 
means any advisory committee which 
advises the President. It may be 
established by the President or by th^ 
Congress, or used by the President in the 
interest of obtaining advice or 
recommendations for the President 
"Independent Presidential advisory 
committee" means any Presidential 
advisory committee not assigned by the 
President, or the President's delegate, or 
by the Congress in law, to an agency for 
administrative and other support and for 
which the Administrator of General 
Services may provide administrative 
and other support on a reimbursable 
basis. 

"Staff member" means any individual 
who serves in a support capacity to an 
advisory committee. 

"Utilized" (or "used"), as referenced 
in the defmition of "Advisory 
committee" in this section, means a 
committee or other group composed in 
whole or in part of other than full-time 
officers or employees of the Federal 
Government with an established 
existence outside the agency seeking its 
advice which the President or agency 
ofncial(s) adopts, such as through 
institutional arrangements, as a 
preferred source from which to obtain 
advice or recommendations on a 
specific issue or policy within the scope 
of his or her responsibilities in the same 
manner as that individual would obtain 
advice or recommendations from an 
established advisory committee. 

§ 101-6.1004 Examples of advisory 
meetings or groups not covered by the Act 
or this subpart 

The following are examples of 
advisory meetings or groups not covered 
by the Act or this subpart; 



GSA ADVISORY COMMITTEE RULE 



115 



(a) Any committee composed wholly 
of full-time officers or employees of the 
Federal Government: 

(b) Any advisory committee 
specifically exempted by an Act of 
Congress; 

(c) Any advisory committee 
established or utilized by the Central 
Intelligence Agency; 

(d) Any advisory committee 
established or utilized by the Federal 
Reserve System: 

(e) The Advisory Committee on 
Intergovernmental Relations; 

(f) Any local civic group whose 
primary function is that of rendering a 
public service with respect to a Federal 
program, or any State or local 
committee, council, board, commission, 
or similar group established to advise or 
make recommendations to State or local 
offlcials or agencies: 

(g) Any committee which is 
established to perform primarily 
operational as opposed to advisory 
functions. Operational functions are 
those speciHcally provided by law, such 
as making or implementing Government 
decisions or policy. An operational 
committee may be covered by the Act if 
it becomes primarily advisory in nature. 
It is the responsibility of the 
administering agency to determine 
whether such a committee is primarily 
operational. If so, it would not fall under 
the requirements of the Act and this 
Subpart, but would continue to be 
regulated under relevant laws, subject to 
the direction of the President and the 
review of the appropriate legislative 
committees: 

(h) Any meeting initiated by the 
President or one or more Federal 
officialCs) for the purpose of obtaining 
advice or recommendations from one 
individual: 

(i) Any meeting initiated by a Federal 
offlciaUs) with more than one individual 
for the purpose of obtaining the advice 
of individual attendees and not for the 
purpose of utilizing the group to obtain 
consensus advice or recommendations. 
However, agencies should be aware that 
such a group would be covered by the 
Act when an agency accepts the group's 
deliberations as a source of consensus 
advice or recommendations; 



(j) Any meeting initiated by a group 
with the President or one or more 
Federal officiaUs) for the purpose of 
expressing the group's view, provided 
that the President or Federal official(s) 
does not use the group recurrently as a 
preferred source of advice or 
recommendations; 

(k) Meetings of two or more advisory 
committee or subcommittee members 
convened solely to gather information or 
conduct research for a chartered 
advisory committee, to analyze relevant 
issues and facts, or to draft proposed 
position papers for deliberation by the 
advisory committee or a subcommittee 
of the advisory committee; or 

(1) Any meeting with a group initiated 
by the President or one or more Federal 
offlcial(s) for the purpose of exchanging 
facts or information. 

§ 101-6.1005 Authorities for establishment 
of advisory committees. 

An advisory committee may be 
established in one of four ways: 

(a) By law where the Congress 
specifically directs the President or an 
agency to establish it; 

(b) By law where the Congress 
authorizes but does not direct the 
President or an agency to establish it. In 
this instance, the responsible agency 
head shall follow the procedures 
provided in § 101-6.1007; 

(c) By the President by Executive 
Order; or 

(d) By an agency under general 
agency authority in Title 5 of the United 
States Code or under other general 
agency-authorizing law. In this instance, 
an agency head shall follow the 
procedures provided in § 101-6.1007. 

§101-6.1006 [Reserved] 

S 101-6.1007 Agency procedures for 
establishing advisory committees. 

(a) When an agency head decides that 
it is necessary to establish a committee, 
the agency must consider the functions 
of similar committees in the same 
agency before submitting a consultation 
to GSA to ensure that no duplication of 
effort will occur. 

(b) In establishing or utilizing an 
advisory committee, the head of an 



116 



STATUTORY BASIS 



agency or designee shall comply with 
the Act and this subpart, and shall: 

(1) Prepare a proposed charter for the 
committee which includes the 
information listed in section 9(c) of the 
Act; and 

(2) Submit a letter and the proposed 
charter to the Secretariat proposing to 
establish or use, reestablish, or renew 
an advisory committee. The letter shall 
include the following information: 

(i) An explanation of why the 
committee is essential to the conduct of 
agency business and in the public 
interest; 

(ii) An explanation of why the 
committee's functions cannot be 
performed by the agency, another 
existing advisory committee of the 
agency, or other means such as a public 
hearing; and 

(iii) A description of the agency's plan 
to attain balanced membership. For 
purposes of attaining balance, agencies 
shall consider for membership 
interested persons and groups with 
professional or personal qualifications 
or experience to contribute to the 
functions and tasks to be performed. 
This should be construed neither to limit 
the participation, nor compel the 
selection of any particular individual or 
group to obtain divergent points of view 
that are relevant to the business of the 
advisory committee. 

(3) Subcommittees that do not 
function independently of the full or 
parent advisory committee need not 
follow the requirements of paragraphs 
(b)(1) and (b)(2) of this section. 
However, they are subject to all other 
requirements of the Act. 

45931 

(4) The requirements of paragraphs 
(b)(1) and {b)(2) of this section shall 
apply for any subcommittee of a 
chartered advisory committee, whether 
its members are drawn in whole or in 
part from the lull or parent advisory 
committee, which functions 
independently of the parent advisory 
committee sudh as by making 

' V "ommendations directly to the agency 
idu I* than for consideration by the 
charlereu advisory committee. 



(c) The Secretariat will review the 
proposal and notify the agency of GSA's 
views within 15 calendar days of 
receipt, if possible. The agency head 
retains final authority for establishing a 
particular advisory committee. 

(d) The agency sltall notify the 
Secretariat in writing that either: 

(1) The advisory committee is being 
established. The filing of the advisory 
committee charter as specified in § 101- 
6.1013 shaQ be considered appropriate 
written notification in this instance. The 
date of filing constitutes the date of 
establishment or renewal. The agency 
head shall then comply with the 
provisions of § lOl-fiJOOQ for an 
established advisory committee; or 

(2) The advisory committee is not 
being established. In this instance, the 
agency shall also advise the Secretariat 
if the agency head intends to take any 
further action with respect to the 
proposed advisory committee. 

§101-6.1008 The role of GSA. 

(a) The functions under section 7 of 
the Act -will be performed for the 
Administrator by the Secretariat. The 
Secretariat assists the Administrator in 
prescribing admrnrstrative guidelines 
and management controls for advisory 
committees, and assists other agencies 
in implementing and interpreting these 
guidelines. In -exercising internal 
controls over the management and 
supervision of the jjperations and 
procedures vested in each agency by 
section 8(b) of the Act and by § 101- 
6.1009 and § 101-6.1017 of this rule, 
agencies shall conform to the guidelines 
prescribed by GSA. 

(b) The Secretariat may request 
comments from agencies on 
management guidelines and policy 
issues of broad interagency interest or 
application to the federal advisory 
committee program. 

(c) In advance of issuing informal 
guidelines, nonstatutory reporting 
requirements, and administrative 
procedures such as report formats or 
automation, the Secretariat shall request 
formal or informal comments from 
agency Committee Management 
Officers. 



GSA ADVISORY COMMITTEE RULE 



117 



§101-6.1 009 Responsibilities of any 
agency head. 

The head of each agency that uses one 
or more advisory committees shall 
ensure: 

(a) Compliance with the Act and this 
subpart; 

(b) Issuance of administrative 
guidelines and management controls 
which apply to all advisory committees 
established or used by the agency; 

(c) Designation of a Coxmnittee 
Management Officer who «hall carry out 
the functions specified in section 8[bJ of 
the Act; 

(d) Provision of a written 
determination stating the reasons for 
closing any advisory t^mmittee meeting 
to the public; 

(e) A review, ai least annually, of the 
need to continue each existing advisory 
committees, consistent with the public 
interest and the purpxose of functions of 
each committee; 

(f) Rates of pay are justified and 
levels of agency support are adequate; 

(g) The appointment of a Designated 
Federal Officer for each advisory 
committee and its subcommittees; 

(h) The opportunity' for reasonable 
public participation in advisory 
committee activities; and 

(i) That the number of committee 
members is limited to the fewest 
necessary to accomplish committee 
objectives. 

§101-6.1010 .[Reserved] 

§ 101-6.101 1 Responsibilities of the 
chairperson of an independent Presidential 
advisory committee. 

The chairperson of an independent 
Presidential advisory committee shall 
comply with the Act and this subpart 
and shaU: 

(a] Consult with the Administrator 
concerning the role of the Designated 
Federal Officer and Committee 
Management Officer; and 

(b) Fulfill the responsibilities of an 
agency head as specified in paragraphs 
(d) and (hj of § 101-6.1009. 

§101-6.1012 [Reserved] 

§ 101-6.1013 Charter fiUng requiren>eDts. 

No advisory conmiittee may o{>erate. 



meet, or take any action until its charter 
has been filed as follows: 

(a) Advisory committee established, 
used, reestablished, or renewed by an 
agency. The agency head shall file — 

(1) The charter with the standing 
committees of the Senate and the House 
of Representatives having legislative 
jurisdiction of the agency; 

(2j A copy of the filed xJiaTter with the 
Library of Congress, Exchange and Gift 
Division. Federal Documents Section, 
Federal Advisory Committee Desk, 
Washington, DC 20540; and 

(3) A copy of the charter indicating the 
Congressional filing date, with the 
Secretariat. 

(b) Advisory committee specifically 
directed by Jaw or authorized by law^ 
Procedures are the same as in paragraph 
(a) of this section. 

(c) Presidential advisory committee. 
When either the President or the 
Congress establishes an advisory 
committee that advises the President, 
the responsible agency head or, in the 
case of an independent Presidential 
advisory committee, the President's 
designee shall file — 

(1) The charter "with the Secretariat; 

(2'j A copy of the filed -charter with the 
Library of Congress; and 

(3) if specifically directed by law, a 
copy of the charter indicating its dale of 
filing with the Secretariat, with the 
standing committees on the Senate and 
the House of Representatives ha vrng 
legislative jurisdiotion of the agency or 
the indepkendent Presidential advisory 
committee. 

§ 101-6.1014 IReserved] 

§101-6.1015 Advisory committee 
information «vhich must be tMiblished inihe 
Fedecal Register. 

(a^ -Committee estatrlishment, 
reestablishment, or renewal, fl] A 
notice in the Federal Register is required 
when an advisory committee, except a 
committee specifically directed by law 
or established by the President by 
Executive Order, isestabhshed, used, 
reestablished, or renewed. Upon 
receiving notification of the completed 
review from the Secretariat in 
accordance with paragraph (c] of § 101- 



118 



STATUTORY BASIS 



6.1007, the agency shall publish a notice 
in the Federal Register that the 
committee is being established, used, 
reestablished, or renewed. For a new 
committee, such notice shall also 
include statements describing the nature 
and purpose of the committee and that 
the committee is necessary and in the 
public interest. 

(2) Establishment and reestablishmexit 
notices shall appear at least 15 calendar 
days before the committee charter is 
filed, except that the "Secretariat may 
approve less than 15 days wtien 
requested by the agency {or -good cause. 
The 15-day advance notice requirement 
does not apply to committee renewals, 
notices of which maybe pub&shed 
concurrently with the filing of the 
charter. 

(b) Committee meeting. (Ij The 
agency or an independent Presidential 
advisory committee shall publish at 
least 15 calendar days prior to an 

45932 

advisory committee meeting a notice in 
the Federal Register, which includes: 

(i) The exact name of the advisory 
committee as chartered; 

(ii) The time, date, place, and purpose 
of the meeting: 

(iii) A summary of the agenda; and 

(iv) A statement whether all or part of 
the meeting is open to the public or 
closed, and if closed, the reasons why, 
citing the specific exemptions of the 
Government in the Sunshine Act (5 
U.S.C. 552(b)) as the basis for closure. 

(2) In exceptional circumstances, the 
agency or an independent Presidential 
advisory committee may give less than. 
15 days notice, provided that the 
reasons for doing so are included in the 
committee meeting notice published in 
the Federal Register. 

§101-6.1016. [Reserved] 

§ 101-6.1017 Responsibilities of the 
agency Committee Management Officer. 

In addition to implementing the 
provisions of section 8(b) of the Act, the 
Committee Management Officer will 
C9rry out all responsibilities delegated 
by the agency head. The Committee 
Management Officer should also ensure 



that section 10(b), 12(a) and 13 of the 
Act are implemented by the agency to 
provide for appropriate recordkeeping. 
Records include, but are not limited to: 

(a) A set of approved charters and 
membership lists for each advisory 
committee; 

(b) Copies of the agency's portion of 
the Annual Report of Federal Advisory 
Committees required by paragraph (b) of 
§ 101-6.1035; 

(c) Agency guidelines on committee 
management operations and procedures 
as maintained and updated; and 

(d) Agency determinations to close 
advisory committee meetings as 
required by paragraph (c) of § 101- 
6.1023. 

§101-6.1018 [Reserved] 

§ 101-6.1019 Duties of the Designated 
Federal Officer. 

The agency head or, in the case of an 
independent Presidential advisory 
committee, the Administrator shall 
designate a Federal officer or employee, 
who may be either full-time or 
permanent part-time, to be the 
Designated Federal Officer for each 
advisory committee and its 
subcommittees, who: 

(a) Must approve or call the meeting 
of the advisory committee; 

(b) Must approve the agenda; 

(c) Must attend the meetings: 

(d) Shall adjourn the meetings when 
such adjournment is in the public 
interest; and 

(e) Chairs the meeting when so 
directed by the agency head. 

(f) The requirement in paragraph (b) of 
this section does not apply to a 
Presidential advisory committee. 

§101-6.1020 (Reserved] 

§ 101-6.1021 Public participation in 
advisory committee meetings. 

The agency head, or the chairperson 
of an independent Presidential advisory 
committee, shall ensure that — 

(a) Each advisory committee meeting 
is held at a reasonable time and in a 
place reasonably accessible to the 
public; 

(b) The meeting room size is sufficient 
to accommodate advisory committee 



GSA ADVISORY COMMITTEE RULE 



119 



members, committee or agency staff, 
and interested members of the public; 

(c) Any member of the public is 
permitted to Hie a written statement 
with the advisory committee; and 

(d) Any member of the public may 
speak at the advisory committee 
meeting if the agency's guidelines so 
permit. 

§101-6.1022 [Reserved] 

9 101-6.1023 Procedures for closing an 
advisory committee meeting. 

(a) To close all or part of a meeting, 
an advisory committee shall submit a 
request to the agency head or, in the 
case of an independent Presidential 
advisory committee, the Administrator, 
citing the specific provisions of the 
Government in the Sunshine Act (5 
U.S.C. 552(b)) which justify the closure. 
The request shall provide the agency 
head or the Administrator sufficient 
time to review the matter in order to 
make a determination prior to 
publication of the meeting notice 
required by § 101-6.1015{b). 

(b) The general counsel of the agency 
or, in the case of an independent 
Presidential advisory committee, the 
general counsel of the General Services 
Administration should review all 
requests to close meetings. 

(c) If the agency head or. in the case 
of an independent Presidential advisory 
committee, the Administrator agrees 
that the request is consistent with the 
provisions in the Government in the 
Sunshine Act and the Federal Advisory 
Committee Act, he or she shall issue a 
determination that all or part of the 
meeting be closed. 

(d) The agency head, or the 
chairperson of an independent 
Presidential advisory committee, shall: 

(1) Make a copy of the determination 
available to the public upon request; and 

(2) State the reasons why all or part of 
the meeting is closed, citing the specific 
exemptions used from the Government 
in the Sunshine Act in the meeting 
notice published in the Federal Register. 

9101-6.1024 (Reserved] 



§ 101-6.1025 Requirement for maintaining 
minutes of advisory committee meetings. 

(a) The agency head or, in the case of 
an independent Presidential advisory 
committee, the chairperson shall ensure 
that detailed minutes of each advisory 
committee meeting are kept. The 
minutes must include: 

(1) Time, date, and place: 

(2) A list of tlie following persons who 
were present: 

(i) Advisory committee members and 

staff: 
(ii) Agency employees: and 
(iii) Members of the public who 

presented oral or written statements: 

(3) An estimated number of other 
members of tlie public present: 

(4) An accurate description of each 
matter discussed and the resolution, if 
any, made by the committee of such 
matter; and 

(5) Copies of each report or other 
document received, issued, or approved 
by the committee. 

(b) The chairperson of each advisory 
committee shall certify to the accuracy 
of all minutes of advisory committee 
meetings. 

§101-6.1026 [Reserved] 

§ 101-6.1027 Termination of advisory 
committees. 

(a) Any advisory committee shall 
automatically terminate not later than 2 
years after it is established, 
reestablished, or renewed, unless: 

(1) Its duration is otherwise provided 
for by law; 

(2) The President or agency head 
renews it prior to the end of such period: 
or 

(3) The President or agency head 
terminates it before that time by 
revoking or abolishing its establishment 
authority. 

(b) If an agency head terminates an 
advisory committee, the agency shall 
notify the Secretariat of the effective 
date of termination. 

§101-6.1028 [Reserved] 



120 



STATUTORY BASIS 



§ 101-S.1029 Renewal and rechartering of 
advisory committees. 

(a) Advisory committees specifically 
directed by law: 

(1) Whose duration extends beyond 2 
years shall require rechartering by the 
filing of a new charter every 2 years 
after the date of enactment of the law 
establishing the committee. If a new 
charter is not filed, the committee is not 

45933 

terminated, but may not meet or take 
any action. 

(2) Which would terminate under the 
provisions of section 14 of the Act. and 
for which renewal would require 
reauthorization by law, may be 
reestablished by an agency provided 
that the agency complies under general 
agency authority with the provisions of 
§ 101-6.1007. 

(b) Advisory committees established 
by the President may be renewed by 
appropriate action of the President and 
the filing of a new charter. 

(c) Advisory committees authorized 
by law or estabUshed or used by an 
agency may be renewed, provided that 
at least 30 but not more than 60 days 
before the committee terminates, an 
agency head who intends to renew a 
committee complies with the provisions 
of § 101-6.1007. 

§101-6.1030 [Reserved] 

§ 1 1 -6. 1 03 1 Amendments to advisory 
committee charters. 

(a) Committees specifically directed 
by law or authorized by law; or 
established by the President. The 
agency head shall be responsible for 
ensuring that any minor technical 
changes made to current charters are 
consistent with the relevant statute or 
Executive Order. When the Congress by 
law, or the President by Executive 
Order, changes the authorizing language 
which has been the basis for 
establishing an advisory committee, the 
agency head, or the chairperson of an 
independent Presidential advisory 
committee, shall: 

(1) Amend those sections of the 
current charter affected by the new law 
or Executive Order and 



(2) File the amended charter as 
specified in § 101-6.1013. 

(b) Committees established or used by 
an agency. The charter of an advisory 
committee established under general 
agency authority may be amended when 
an agency head determines that the 
existing charter no longer accurately 
reflects the objectives or functions of the 
committee. Changes may be minor, such 
as revising the name of the advisory 
committee, or modifying the estimated 
number or frequency of meetings. 
Changes may also be major such as 
those dealing with the objectives or 
composition of the committee. The 
agency head retains final authority for 
amending the charter of an advisory 
committee. Amending any existing 
advisory committee charter does not 
constitute renewal of the committee 
under § 101-6.1029. 

(1) To make a minor amendment to a 
committee charter, an agency shall: 

(i) Amend the charter language as 
necessary, and 

(ii) File the amended charter as 
specified in § 101-6.1013. 

(2) To make a major amendment to a 
committee charter, an agency shall: 

(i) Amend the charter language as 
necessary; 

(ii) Submit the proposed amended 
charter with a letter to the Secretariat 
requesting GSA's views on the amended 
language, along with an explanation of 
the purpose of the changes and why 
they are necessary. The Secretariat will 
review the proposed changes and notify 
the agency of GSA's views within 15 
calendar days of the request, if possible: 
and 

(iii) File the amended charter as 
specified in § 101-6.1013. 

§ 101-6.1032 [Reserved] 

§ 101-6.1033 Compensation and expense 
reimbursement of advisory committee 
members, staffs and consultants. 

(a) Uniform pay guidelines for 
members of an advisory committee. 
Nothing in this subpart shall require an 
agency head to provide compensation, 
unless otherwise provided by law, to a 
member of an advisory committee. 
However, when compensation is 



GSA ADVISORY COMMITTEE RULE 



121 



deemed appropriate by an agency, it 
shall flx the pay of the members of an 
advisory committee to the daily 
equivalent of a rate of the General 
Schedule in 5 U.S.C. 5332 unless the 
members are appointed as consultants 
and compensated under 5 U.S.C. 3109. In 
determining an appropriate rate of pay 
for the members, an agency shall give 
consideration to the significance, scope, 
and technical complexity of the matters 
with which the advisory committee is 
concerned and the qualifications 
required of the members of the advisory 
committee. An agency may not fix the 
pay of the members of an advisory 
committee at a rate higher than the daily 
equivalent of the maximum rate for a 
GS-15 under the General Schedule, 
unless a higher rate is mandated by 
statute, or the head of the agency has 
personally determined that a higher rate 
of pay under the General Schedule is 
justified and necessary. Such a 
determination must be reviewed by the 
head of the agency annually. Under this 
subpart, an agency may not fix the pay 
of the members of an advisory 
committee at a rate of pay higher than 
the daily equivalent of a rate for a GS- 
18. as provided in 5 U.S.C. 5332. 

(b) Pay for staff members of an 
advisory committee. An agency may fix 
the pay of each advisory committee staff 
member at a rate of the General 
Schedule in which the Staff member's 
position would appropriately be placed 
(5 U.S.C. Chapter 51). An agency may 
not fix the pay of a staff member at a 
rate higher than the daily equivalent of 
the maximum rate for GS-15. unless the 
agency head has determined that under 
the General Schedule the staff member's 
position would appropriately be placed 
at a grade higher than GS-15. This 
determination must be reviewed 
annually by the agency head. 

(1) In establishing rates of 
compensation, the agency head shall 
comply with any applicable statutes, 
regulations, Executive Orders, and 
administrative guidelines. 

(2) A staff member who is a Federal 
employee shall serve with the 
knowledge of the Designated Federal 
Officer and the approval of the 



employee's direct supervisor. If a non- 
Federal employee, the staff member 
shall be appointed in accordance with 
applicable agency procedures, following 
consultation with the advisory 
committee. 

(c) Pay for consultants to an advisory 
committee. An agency shall fix the pay 
of a consultant to an advisory 
committee after giving consideration to 
the qualifications required of the 
consultant and the significance, scope, 
and technical complexity of the work. 
The compensation may not exceed the 
maximum rate of pay authorized by 5 
U.S.C. 3109, and shall be in accordance 
with any applicable statutes, 
regulations. Executive Orders and 
administrative guidelines. 

(d) Gratuitous services. In the absence 
of any special limitations appHcable to a 
specific agency, nothing in this subpart 
shall prevent an agency from accepting 
the gratuitous services of an advisory 
committee member, staff member, or 
consultant who agrees in advance to 
serve without compensation. 

(e) Travel expenses. Advisory 
committee members and staff members, 
while engaged in the performance of 
their duties away from their homes or 
regular places of business, may be 
allowed travel expenses, including per 
diem in lieu of subsistence, as 
authorized by section 5703 of Title 5, 
United States Code, for persons 
employed intermittently in the 
Government service. 

(f) Services for handicapped 
members. While performing advisory 
committee duties, an advisory 
committee member who is blind or deaf 
or who qualifies as a handicapped 
individual may be provided services by 
a personal assistant for handicapped 
employees if the member: 

(1) Qualifies as a handicapped 
individual as defined by section 501 of 

45934 

the Rehabilitation Act of 1973 (29 U.S.C. 
794); and 

(2) Does not otherwise qualify for 
assistance under 5 U.S.C. 3102 by reason 
of being an employee of an agency. 



122 



STATUTORY BASIS 



(g) Exclusions. (1) Nothing in this 
section shall prevent any person who 
(without regard to his or her service 
with an advisory committee) is a full- 
time Federal employee from receiving 
compensation at a rate which he or she 
otherwise would be compensated as a 
full-time Federal employee. 

(2) Nothing in this section shall 
prevent any person who immediately 
before his or her service with an 
advisory committee was a full-time 
Federal employee from receiving 
compensation at the rate at which he or 
she was compensated as a full-time 
Federal employee. 

(3) Nothing in this section shall affect 
a rate of pay or a limitation on a rate of 
pay that is specifically established by 
law or a rate of pay established under 
the General Schedule classification and 
pay system in chapter 51 and chapter 53 
of Title 5. United States Code. 

§ 101-6.1034 [Reserved] 

§ 1 1 -6. 1 035 Reports required for 
advisory committees. 

(a) Within one year after a 
Presidential advisory committee has 
submitted a public report to the 
President, the President or his delegate 
will prepare a follow-up report to the 
Congress detailing the disposition of the 
committee's recommendations in 
accordance with section 6(b) of the Act; 

(b) The President's annual report to 
the Congress shall be prepared by GSA 
based on reports filed on a fiscal year 
basis by each agency consistent with 
the information specified in section 6(c) 
of the Act. Reports from agencies shall 
be consistent with instructions provided 
annually by the Secretariat. This report 
has been cleared in accordance with 
FIRMR 201^5.6 in 41 CFR Chapter 201 
and assigned interagency report control 
number 0304-CSA-XX. 

(c) In accordance with section 10(d) of 
the Act. advisory committees holding 
closed meetings shall issue reports at 
least annually, setting forth a summary 
of activities consistent with the policy of 
Section 552(b) of Title 5. United States 
Code. 



(d) Subject to section 552 of Title 5. 
United States Code, eight copies of each 
report made by an advisory committee, 
including any report on closed meetings 
as specified in paragraph (c) of this 
section, and. where appropriate, 
background papers prepared by 
consultants, shall be filed with the 
Library of Congress as required by 
section 13 of the Act. for public 
inspection and use at the location 
specified in paragraph (a)(2) of § 101- 
6.1013. 

Dated: November 24, 1987. 
T.C. Golden, 

A dmjnistrator of General Services. 
(FR Doc. 87-27776 Filed 12-1-87; 8:45 amj 

BILXJNG CODE 6a20-34-M 



CHAPTER 4 - THE CONVENING PROCESS 



The process of convening a regulatory negotiation includes 
evaluating the feasibility of negotiating a rule, designing the 
structure of a negotiating committee, and identifying a preliminary 
set of issues to be negotiated. An agency contemplating negotiated 
rulemaking will usually choose one or more "convenors" -- persons 
or organizations that will carry out these tasks and discuss the 
results with agency officials. In addition, it may be necessary or 
advisable at various times in the convening process for agency staff 
to contact relevant congressional staff. Office of Management and 
Budget staff, and staff of other agencies to discuss with them the 
possibility of negotiating the rule. 

The convenor must first identify all interests that may be 
affected by the rule. The term "interest" refers to a grouping of 
parties who are likely to be affected similarly by the regulation or 
who appear to have similar perspectives on the subject matter of the 
contemplated rule. The convenor normally proceeds by contacting 
the parties, including the agency, and by interviewing them in an 
effort to identify all interests, to detlne the issues that need to be 
addressed in the rulemaking, and to explore whether it is possible to 
obtain commitments to negotiate from representative parties and 
agency personnel. The convenor attempts to assemble a balanced 
committee willing and able to work toward the goal of consensus on 
a rule that is within the agency's statutory authority and which 
addresses the issues that cause the agency to consider adopting a 
rule. (See 5 U.S. C. §563(b)) 

The importance of the convening process cannot be over- 
emphasized. An agency should not undertake a negotiated 
rulemaking proceeding without first giving adequate attention to the 
issues and steps noted above. This does not mean that the agency 
must always hire an outside consultant and conduct an elaborate 
study. The convenor, however selected, will ordinarily take as a 
starting point the information and experience already in possession 
of the agency. The essence of the convening process, however, is 
to talk to potential parties about both the issues and the process. 
Through these contacts. Judgments can be made about which 
interests must participate, who can adequately represent those 



123 



I 



B 



124 THE CONVENING PROCESS 



interests, their willingness to participate, and the prospects for 
success. In some instances, of course, the convening process may 
result in a decision not to use reg-neg, or perhaps to use some other 
approach to developing a consensus. Agency experience indicates 
that skipping or minimizing this inquiry may substantially reduce 
the likelihood of achieving the benefits of negotiated rulemaking. 



Selecting a Convenor 

Convenors may be agency employees, employees of other 
agencies, or private sector contractors skilled in bringing parties 
together to negotiate. Normally, a convenor should be neutral with 
respect to the substantive issues. This ordinarily implies use of 
either a government employee loaned from another program or 
agency or use of a private sector contractor. 

A convenor who has no current responsibility in connection 
with the proposed rulemaking is more likely to be able to establish 
rapport with prospective parties and to obtain more complete 
information than could agency rulemaking staff. Parties may be 
more frank with such a convenor about whether they are interested 
in negotiating or about what issues are important and why. The 
fresh perspective brought to the rulemaking problem by an outsider 
may also be valuable in identifying parties or interests who have not 
been involved previously. The result may be a better evaluation of 
the rule's feasibility for negotiation. 

In some cases, where the rulemaking is not essentially an 
adversarial process, it may be acceptable to choose as convenor a 
person on the agency's rulemaking staff. However, this person 
would probably not be able to function as a mediator during the 
negotiation stage of the proceeding. It may make sense to use 
agency rulemaking staff for convening where there is a good 
working relationship with the affected parties. Additionally, staff's 
knowledge of the subject may lead to a more detailed discussion of 
which issues should be open to negotiation. Use of rulemaking staff 
can also save contract dollars for the agency, though this choice 
may divert badly needed staff resources from preparation of drafts 
or background information needed to begin negotiations. 

A team of convenors may be appropriate for a rule with many 
complex issues or dozens of potentially affected parties. The team 
can be composed of a mix of rulemaking staff, other staff, and 
private sector contractors. 



THE CONVENING PROCESS 125 



Qualifications are important. To be a good convenor, a person 
should have investigative talents, organizational skills, an ability to 
understand and communicate complex issues, and excellent listening 
skills. A background in conflict analysis or dispute resolution can 
be helpftjl in evaluating the probability of reaching consensus. 



Steps in the Convening Process 

An agency has made the initial judgment that a rule may 
benefit from negotiation and has selected a convenor. What does 
the convenor do? 

Representation of all affected interests in the negotiation is 
critical if the rule developed is to receive widespread support. The 
first step is to put together an initial list of potentially affected 
parties or interests. This is done by talking with the agency staff 
involved in this rulemaking and in other rulemaking proceedings 
that have involved similar issues, and by looking at the records of 
any such proceedings. The statute under which the rule is to be 
promulgated may specify certain interests that must be contacted. 
The legislative history may provide additional useful information. 

It is helpful for the convenor to prepare a summary describing 
the contemplated rule and the reg-neg process, and to develop a list 
of assessment questions for use in interviewing parties. The 
convenor then makes contact with parties who might be able to 
represent each of the identified interests. These initial interviews 
are crucial in gathering information about the parties, the nature of 
their interest in the rule, and the scope of the issues. The 
interviews also serve as an educational tool on the negotiated 
rulemaking process, assisting potential parties to identify and 
resolve their concerns about the process and to determine whether it 
is in their interest to participate. 

It is particularly important that potential parties acquire some 
understanding of the implications of the term "consensus" before 
agreeing to participate. (See the discussion of "consensus" in 
chapter 6.) Addressing this issue, Philip J. Harter has said: 

"[Consensus] ranges in meaning from a simple 
majority vote, to general agreement (meaning no 
substantial disagreement), on to unanimity. A workable 
approach has been . . . that, unless the parties agree to 
some other definition at the outset, each interest concurs 
in the result. This definition does not require each 



I 



a 



126 THE CONVENING PROCESS 



individual to agree, nor does it require that each interest 
support the outcome affirmatively. It does mean that the 
participants agree not to challenge the proposed or final 
rule if consistent with the [committee's] recommendation. 

"This definition provides that each interest when 
viewed as a whole has the power to veto the outcome. 
That preservation of power is critical in securing the 
willingness of interests to participate. If an interest felt 
that it could be outvoted in the discussions, it could 
reasonably believe it would be better off in the more 
formal, structured process, and it would not want to 
negotiate directly." (Testimony of Philip J. Harter on S. 
1504, before the Senate Committee on Governmental 
Affairs, May 13, 1988.) 

During the interviews, the convenor should explore possible 
obstacles to the negotiations such as: 

• issues of fundamental values that cannot be 
compromised, 

• unwillingness to participate by one or more key 
parties, 

• disputes over factual information, 

• issues too numerous or too complex to negotiate, or 

• too many parties. 

The convenor should make an effort to explore with the parties and 
the agency whether it is possible to structure the negotiating 
committee or the negotiations so as to minimize these obstacles. 
They may also discuss a tentative set of ground rules for the 
negotiations. Finally, the convenor should use the interviews as a 
tool for discovering any additional interests that might be affected 
by the rule and parties who might be suitable representatives of 
those interests. The interviews usually become an iterative process, 
which will eventually identify the parties affected by the rule. 
Agencies should recognize that a thorough convening effort is 
essential for the success of the reg-neg process, and should allow 
sufficient time in projecting their rulemaking schedules. 

When the interviews have been completed, the convenor should 
summarize the results and recommend to agency management 
whether to proceed with the negotiations and, if so, who should 
participate. The convenor should also identify any additional 



THE CONVENING PROCESS 127 



parties who ought to be kept informed about the process. In 
practice, it appears that the maximum number of parties for which 
the process can be icept manageable is approximately 25. (Agencies 
conducting reg-negs have found 20 to 25 to be manageable, and this 
experience supersedes the Administrative Conference's initial 
estimate of a maximum of 15.) The Reg-Neg Act specifies a limit 
of 25, but permits a larger number if the agency head determines a 
larger committee to be necessary. (5 U.S.C. §565(b)) If there are 
more than 25 interests or interest groups, the convenor can explore 
whether it is possible to aggregate similar or related interests, either 
to form a coalition or merely to have a common spokesman, so that 
the number of negotiators actually sitting at the table is not 
unwieldy but all affected interests are adequately represented. In 
such instances, it is important for the negotiator to keep in close 
contact with each of the differing interests represented. In some 
cases, it may even be necessary to have the assistance of a mediator 
to deal with differences among parties represented by a single 
negotiator. 

The convenor should also discuss with agency management the 
issues the parties wish to negotiate, the issues the parties will not or 
cannot negotiate, any obstacles that must be overcome and potential 
solutions, and a proposed design for the negotiation process itself. 
The agency may want the convenor to report, as well, to the 
parties. Informing the parties of the results of the convening effort 
can help establish a positive atmosphere that will be valuable if the 
agency decides to proceed with negotiations. 

Both the agency and the convenor should be aware of an option 
that may sometimes arise. The subject matter of the proposed 
regulation may be within the jurisdiction of an existing committee 
of a non-governmental standards-writing organization such as the 
American National Standards Institute, the American Society for 
Testing and Materials, or the National Fire Protection Association. 
Voluntary consensus standards organizations such as these have 
procedures intended to ensure the fair representation of affected 
interests and a process for determining whether a proposed standard 
actually reflects a consensus among them. If such a committee 
exists and appears to enjoy the support and confidence of the 
affected interests, the convenor should consider recommending to 
the agency that negotiations be conducted under the auspices of that 
committee instead of establishing an entirely new framework for 
negotiations. (See Administrative Conference Recommendation 78- 
4, 1 CFR §305.78-4; see also Recommendation 82-4, par. 6, in the 
appendix to chapter 1.) 



I 



D 



128 THE CONVENING PROCESS 



The Decision to Proceed 

Agency management then must decide whether to proceed with 
negotiations on the proposed issues. This decision requires careful 
consideration of the appropriateness - both substantive and 
procedural -- of negotiating the suggested issues. (On procedural 
questions, see Recommendations 82-4 and 85-5 in the appendix to 
chapter 1, and also the discussion in chapter 2.) It may be 
appropriate for the agency to make further use of the convenor at 
this point. For example, if the agency does not want to negotiate 
particular issues identified by the convenor, it may be helpful for 
the convenor to contact the parties again to confirm whether they 
would still be interested in participating if a certain issue is not "on 
the table." 



Final Convening Phase 

If the agency decides to proceed with the reg-neg, the convenor 
should now contact each party and obtain a more formal 
commitment to participate in the negotiation. The participants 
must, of course, be willing to negotiate in good faith to draft a 
proposed rule. Each party will select its own actual representative 
(and an alternate, if appropriate). Parties should be encouraged to 
choose negotiators who have knowledge of the subject matter and, if 
possible, experience in policy deliberations. The convenor or 
agency staff may be able to assist parties in finding suitable 
individuals. The representatives chosen should be able to speak for 
their constituencies and should be able to accept an agreement on 
their behalf in the event that consensus is reached. (See chapter 6 
for discussion of the meaning of consensus.) 

Parties and their representatives must understand that they are 
responsible for actively communicating information to and from 
their constituents during the negotiations. Exchange of data, 
experience, and the needs of the various interests will help the 
negotiators to craft creative solutions to problems and will foster a 
climate for achieving consensus. As the negotiations proceed ~ and 
especially if consensus is reached — it will be important for the 
negotiators to explain to their constituents the nature of the proposal 
and the value of supporting the agreement. 

The Negotiated Rulemaking Act requires the agency to publish 
a notice in the Federal Register and, as appropriate, in trade or 
other specialized publications, announcing its intent to conduct a 
negotiated rulemaking and requesting comments on the proposal. (5 



THE CONVENING PROCESS 129 



U.S.C. §564) The notice must describe the subject and scope of the 
rule and the issues to be considered. It should list the interests 
likely to be significantly affected, the persons proposed to represent 
those interests, and the agency's own representative. The notice 
should contain a proposed agenda and schedule for completing the 
committee's work, a description of the administrative support and 
technical assistance that the agency will furnish. Finally, the notice 
must provide a period of at least 30 days in which persons who 
believe their interests will not be adequately represented may apply 
for membership in the committee or nominate others. 

The agency does not have to grant requests for membership or 
nominations, but it must offer the opportunity and it must take the 
requests into account when determining the fmal composition of the 
committee. (5 U.S.C. §565(a)) The convenor and the agency staff 
should talk with these parties, or otherwise contact them, and 
determine whether they really do represent additional interests or 
whether those interests are already adequately represented. The 
agency may either expand the proposed membership of the 
committee or try to negotiate an appropriate realignment of the 
membership to achieve better representation of all of the affected 
interests. 

If, after considering the comments and applications received 
from the public, the agency decides not to establish a negotiated 
rulemaking committee, then the Reg-Neg Act requires publication 
of a notice of that decision in the Federal Register and other 
appropriate publications. (5 U.S.C. §565(a)(2)) The notice should 
also be sent to anyone who submitted an application or nomination 
for membership on the committee. 

New issues may surface in the public comments or in the 
course of any resulting interviews. The convenor and the agency 
staff should review these and decide whether the issues are within 
the scope of the negotiation. If so, and if the agency is willing to 
negotiate these new issues, then the new issues should be scheduled 
for discussion at the initial or organizational meeting of the 
negotiating committee. 

The agency also must now decide whether or not to use a 
mediator or facilitator, and if so, whom. All of the reg-negs to date 
have used the services of a third party neutral mediator or 
facilitator. The Reg-Neg Act assumes that a facilitator will be used 
and specifies a number of duties for that person, including chairing 
meetings and keeping records, as well as assisting the committee 
members in the negotiations. No one designated to represent the 



I 



Q 



130 THE CONVENING PROCESS 



agency in the negotiations may serve as facilitator or otherwise 
chair the committee. (5 U.S.C. §566) 

For large negotiations a team has been used to provide more 
complete assistance in facilitating both the plenary meetings of the 
group and of subcommittees or caucuses. Mediators can also be 
helpftil in addressing disputes that may arise within a constituency 
that is not uniform in its view of the issues. 

Careful selection of qualified and truly neutral third party 
"neutrals" is crucial to the success of the negotiation. Each member 
of the negotiation committee must have confidence in the mediator's 
skills in managing the process, in the mediator's neutrality on the 
issues under consideration, and in the mediator's lack of bias with 
respect to the parties. Often the convenor, if drawn from outside 
the agency's rulemaking staff, will have established the necessary 
trust and rapport with the parties during the convening process, and 
may be the best choice as a single mediator or as a member of a 
mediation team. Another advantage of using the convenor as 
mediator is that the convenor has built up considerable familiarity 
with the issues as well as the parties. 

Agencies have used convenors and mediators from their own 
staff, from other agencies (Federal Mediation and Conciliation 
Service and Environmental Protection Agency), and from the 
private sector. See chapter 8 and the appendix to chapter 8 
(especially Administrative Conference Recommendation 86-8) for 
further information on qualifications of neutrals, how to choose 
them, and how to obtain their services. 



The Federal Advisory Committee Act 

Chapter 3 discusses the applicability of the Federal Advisory 
Committee Act (FACA), the guidelines and interpretations of that 
Act found in the General Services Administration's rule on 
committee management, and the approval of the Office of 
Management and Budget required by Executive Order 12838. The 
appendix to chapter 3 contains the texts of both the Act and the 
rule. 

When an agency has determined to establish a committee for 
negotiating a rule, it ordinarily must file an advisory committee 
charter in accordance with FACA. Section 9(c) of FACA prohibits 
a committee from meeting or taking any action until a charter is 
filed. The formal requirements for chartering are found in the GSA 



THE CONVENING PROCESS 131 



regulations, 41 CFR §101-6.1013 and §101-6.1015 (see appendix to 
chapter 3). 

The appendix to chapter 4 contains sample committee charters 
and Federal Register notices of intent ~ documents that an agency 
will need in connection with establishing an advisory committee to 
negotiate a rule. 



A ppendix 

In addition to sample committee charters, related 
correspondence, and sample notices of intent to establish advisory 
committees to negotiate rules, the appendix to chapter 4 contains a 
memorandum to the Deputy Administrator of EPA, briefing him on 
the decision to proceed with a reg-neg on the woodburning stove 
rule. The memorandum lists the documents required by EPA for 
initiation of negotiations and requests sign-off. Although the 
woodburning stove notices pre-date passage of the Reg-Neg Act, 
they illustrate all of the steps required by the Act, including the 
requirement that the notice of intent to establish a committee offer 
an opportunity for additional individuals or interests to apply for 
membership or representation. 

Other Federal Register notices in the appendix illustrate how 
agencies have complied with the public notice requirements under 
the Reg-Neg Act and FACA that pertain to convening a reg-neg and 
starting negotiations. The letter to the Occupational Safety and 
Health Administration about the feasibility of negotiating a benzene 
regulation illustrates the kind of information that the convening 
process should identify. The appendix also contains a copy of a 
court order granting a continuance to allow time for resolution of 
issues through negotiated rulemaking by the Department of the 
Interior. 



I 



132 



THE CONVENING PROCESS 



( 



m 



UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 
WASHINGTON. DC. 20460 



Honorable Terence Golden 

Administrator 

General Services Administration 

Washington, D.C. 20405 

Attention: Director 

GSA Committee Management Secretariat 

Dear Mr. Golden: 

As required by the GSA Interim Rule on Federal Advisory 
Committee Management, I am sending you this "Letter of Consulta- 
tion" requesting that you concur with EPA's attached charter 
establishing a Negotiated Rulemaking Advisory Committee to 
develop New Source Performance Standards for Residential Wood 
Combustion Units. 

A substantial part of our Agency's mission involves 
formulating and promulgating Federal regulations. All too often, 
this process can be resource-intensive, time-consuming, uncertain 
as to results, and lead to protracted litigation. 

In 1983, EPA decided to explore whether there was a more 
effective way to proceed. To do this, we initiated a demonstra- 
tion project to develop proposed rules by face-to-face, all-party 
negotiations. Consensus proposals concerning Nonconformance 
Penalties and Emergency Pesticide Exemptions were so successfully 
negotiated that Lee Thomas and I directed the Regulatory 
Negotiation Project Staff to conduct additional negotiations. 
A third. Farmworker Protection Standards for Agricultural 
Pesticides is currently underway. (The attached fact sheet 
contains more information on the project and describes its 
present status.) 

Under existing legislation, the only way to conduct these 
negotiations is to establish a FACA Advisory Committee. Exclu- 
sive of the facilitator who serves as chairperson, the committee 
will have no more than 25 members. EPA will carefully monitor 
membership to ensure that there is a balance among those inter- 
ests affected by the regulations, including: public interest 
groups; wood stove and catalyst manufacturers; States; Federal 
agencies; and other affected parties. 



EPA FACA CHARTER LETTER 133 



-2- 



As our attached charter indicates. New Source Performance 
Standards for Residential Wood Combustion Units, under the Clean 
Air Act as amended, is our fourth negotiation item. 

I believe that this negotiation is well worth conducting 
in terms of the potential gain to all affected parties, including 
the Federal government, and that there is no alternative to 
chartering a committee to act as the vehicle for the negoti- 
ation itself. 

If you or your staff have any questions, please contact 
Chris Kirtz, the Project Director, at 382-7565. 

We would appreciate receiving your concurrence as soon 
as possible. 

Thank you in advance for your assistance. 

Sincerely, 



A. Jcimes Barnes 
Deputy Administrator 



Attachments (2) 



I 



d 



134 THE CONVENING PROCESS 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 
ADVISORY COMMITTEE CHARTER 

ORGANIZATION AND FUNCTIONS - COMMITTEES, BOARDS, PANELS AND COUNCILS 

NEW SOURCE PERFORMANCE STANDARDS FOR RESIDENTIAL WOOD 
COMBUSTION UNITS NEGOTIATED RULEMAKING ADVISORY COMMITTEE 

1. PURPOSE ; This Charter establishes the New Source Performance 
Standards for Residential Wood Combustion Units Advisory 
Committee, in accordance with the provisions of the Federal 
Advisory Committee Act (FACA), 5 U.S.C. (App. I) 9(c). 

2. AUTHORITY ; It is determined that establishment of this 
Committee is in the public interest and supports EPA in performino 
its duties and responsibilities under Section 111 of the Clean Air 
Act, as amended. 

3. OBJECTIVE AND SCOPE OF ACTIVITY ; The Committee will serve 
as an integral part of EPA's development of New Source 
Performance Standards For Residential Wood Combustion Units. It 
will attempt, via face-to-face negotiations, to reach consensus 
on concepts and language to use as the basis of the Notice of 
Proposed Rulemaking. 

4. FUNCTIONS ; As indicated above, the Committee's function 
is to assist directly in the development of the standard. In 
addition, the Committee's success or lack thereof, will help EPA 
assess: the value of developing regulations by negotiation; the 
types of regulations which are most appropriate for this process; 
and the procedures and circumstances which best foster successful 
negotiations. 

5. COMPOSITION ; The Committee will consist of not more than 
twenty members, plus a facilitator who is appointed by the EPA 
Deputy Administrator, and who will serve as Chairperson. 
Members will represent the following segments of the population 
in appropriate mix and balance: 

a. Woodstove manufacturers; 

b. Catalyst manufacturers; 

c. Public interest groups interested in the development 
and enforcement of environmental regulations relating 
to the use of residential wood combustion units; 

d. State and Federal agencies affected by these regulations; 
and 

e. Other interested and affected parties. 



WOOD STOVE FACA CHARTER 135 



ADVISORY COMMITTEE CHARTER 



Appropriate members shall be selected and appointed for the 
duration of the negotiation itself. A full-time salaried 
official or regular employee of the Agency will be designated as 
the Executive Secretary who will be present at all meetings and is 
authorized to adjourn any meeting whenever it is determined to 
be in the public interest to do so. The Committee is authorized 
to form subcommittees composed entirely of committee members for 
any purpose consistent with this charter. Such subcommittees 
shall report back to the full Committee. 

EPA will not compensate members for their service, though it will 
pay travel and per diem expenses when necessary and appropriate. 
The Committee's estimated annual operating cost is approximately 
$40/000, which includes 0.6 work years of staff support. EPA's 
Office of Policy, Planning and Evaluation will provide the necessary 
Committee support. 

6. MEETINGS : Meetings shall be held as necessary, at the call of 
the Chairperson, with an agenda for each meeting approved in advance 
by the Executive Secretary. Committee meetings will be called, 
announced, and held in accordance with the EPA Committee Management 
Manual. This manual contains the Agency's policies and procedures 
for implementing FACA. Among other things, FACA requires open 
meetings, and an opportunity for interested persons to file 
comments before or after meetings, or to make statements to the 
extent that time permits. Subcommittees shall meet subject to the 
same conditions. 

7. DURATION ; The Committee will terminate by September 30, 1986, 
unless the Deputy Administrator determines that the Committee 
will finish its work within 30 days of the original termination 
date. If the Deputy Administrator makes such a determination, he 
can extend the termination date by 30 days without further approval 
by 0MB or GSA. In the event more time is needed, EPA may seek an 
extension under Section 14 of FACA. 

^1 1^ 1 3(^ Deputy Administrator 




Approval Date 

M/^ I 8 1986 



OMB/GSA Review Date 

MAR I 9 1986 

Date Filed with Congress 



136 



THE CONVENING PROCESS 



DEPARTMENT OF TRANSPORTATION 

CHARTER 

OIL SPILL RESPONSE PLAN NEGOTIATED RULEMAKING COMMITTEE 



PURPOSE: This Charter establishes the Oil Spill Response Plan 
Negotiated Rulemaking Committee (OSRPNRC) for the Coast Guard's 
rulemaking on oil spill response and sets forth guidelines for 
Its operation. The committee Is established under the authority 
of the Federal Advisory Committee Act (FACA) (5 U.S.C. App. ) 
(Pub.L. 92-463) and the Negotiated Rulemaking Act of 1990 (Reg 
Nag Act) (Pub.L, 101-648) and shall be governed by the provisions 
of those statutes. 

SCOPE AND OBJECTIVES: The committee shall advise the Coast Guard 
on a rulemaking to establish regulations for oil spill response 
under sections 311(j)(5) and (J)(6)(B) of the Federal Water 
Pollution Control Act (FWPCA) (33 U.S.C. 1321 ei asa-), as 
amended by section 4202 of the Oil Pollution Act of 1990 (Pub.L. 
101-380) (OPA 90). The committee shall act solely in an advisory 
capacity to the Coast Guard and shall not exercise program 
management responsibility nor make decisions directly affecting 
the matters on which it provides advice. 

DUTIES: The committee shall be responsive to specific 
assignments made by the sponsor. The committee shall consider 
the matters proposed by the sponsor and shall attempt to reach a 
consensus on portions of a proposed rule for oil spill response 
plans. If the committee reaches consensus on a proposal, it 
shall submit a report containing the proposal to the sponsor. If 
the committee does not reach a consensus, it shall submit a 
report on any areas on which a consensus was reached. The 
proposed rule to be published by the Coast Guard shall Include 
any proposals on which the committee reached consensus. After 
reviewing the public comments on its proposals, the committee 
will attempt to reach a consensus on proposals for a final rule 
and will submit a report to the sponsor. 

DURATION: Until completion of the subject rulemaking or until 
the expiration of this Charter, whichever occurs first, unless 
terminated earlier under the provisions of 5 U.S.C. 587. 

OFFICIAL TO WHOM THE COMMITTEE REPORTS: Chief, Office of Marine 
Safety, Security and Environmental Protection. 

SPONSOR AND OFFICES PROVIDING SUPPORT: Chief, Office of Marine 
Safety, Security and Environmental Protection shall be the 
sponsor. The Office of Marine Safety, Security and Environmental 
Protection shall furnish support services. 



OIL SPILL FACA CHARTER 137 



ESTIMATED ANNUAL COST: Approximately 1.3 person years and 

$30,000. 

MEMBERSHIP: The conunlttee shall consist of approximately 17, but 
not more than 20, members appointed by the sponsor. Individuals, 
as opposed to group representatives, must be approved by the 
Secretary of Transportation. The committee shall be comprised of 
persons representing the Interests affected by the regulations, 
including environmental and other public interest groups, states, 
vessel ovmers and operators, cleanup contractors, other affected 
private sector groups, and the U.S. Coast Guard. The Secretary 
of the Interior, the Administrator of the Environmental 
Protection Agency, the Maritime Administrator, and others, as 
requested by the sponsor, are authorized and encouraged to each 
designate one or more representatives to participate as observers 
or technical advisors. 

OFFICERS: A facilitator shall serve as chairperson of the 
committee in accordance with the provisions of 5 U.S.C. 586(d). 
The sponsor may designate other officers as needed. 

MEETINGS: (a) The committee shall meet and terminate at the 
call of the committee chairperson. The chairperson shall prepare 
agendas which will be reviewed and approved by a designated 
Federal Official. 

(b) Each committee meeting shall be open to the public. A 
notice of each meeting shall be published in the Federal Register 
at least fifteen days in advance of the meeting. Shorter notice 
is permissible in cases of emergency, but the reason for the 
emergency must be reported in the notice. 

(c) Detailed minutes of each meeting shall be kept and 
their accuracy certified to by the committee chairperson. The 
minutes shall include time and place of the meeting, a record of 
the persons present, a complete summary of matters discussed and 
conclusions reached and copies of all reports received. Issued or 
approved by the committee. 

COMPENSATION FOR MEMBERS: The members shall be responsible for 
their own expenses of participation in the committee except to 
the extent that reimbursement is available under 5 U.S.C. 588(C). 

RECORDS AVAILABILITY: Subject to 5 U.S.C. 552, the records, 
reports, minutes, agenda, or other documentation shall be made 
available for public inspection and copying at a single location 
in the offices of the Executive Secretary, Marine Safety Council. 

FILING DATE: . This is the effective date 

of this Charter, which will expire two years subsequent to this 
date unless sooner terminated or extended. 



138 THE CONVENING PROCESS 



A \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 






i 



OFFICE OF 
POLICY. PLANNING AND EVALUATIC 



MEMORANDUM ; 

SUBJECT: New Source Performance Standards for Residential Wood 
Combustion Units as the Next Regulatory Negotiation 
Item 

FROM: Milton Russell, Assistant Administrator 
for Policy, Planning and Evaluation 

TO: A. James Barnes 

Deputy Administrator 



PURPOSE 

The purpose of this memorandum is to request your signature 
on the attached documents. Your signature will allow us to 
commence negotiations on New Source Performance Standards for 
Residential Wood Combustion (RWC) Units as EPA's next Regulatory 
Negotiation item. Charles Elkins joins me in this request. 

Several items require your signature. The first is a 
Federal Register Notice announcing EPA's intent to negotiate 
this item unless public comment or other information leads us to 
believe this is infeasible or unwise. The second is a cover 
letter to GSA. The third is a Federal Advisory Committee Act 
Charter. 

BACKGROUND 

At the January 28, 1985 briefing for the Administrator and 
the Assistant Administrators, the Administrator directed us to 
proceed with additional negotiations. OAQPS proposed this item 
as a candidate. My Regulatory Negotiation Project staff and 
our contractor have been working with OAQPS to determine whether 
or not this item is suitable for negotiation. After 
considerable work and extensive contact with potential parties, 
OAQPS and we believe it is a good candidate. 



RESIDENTIAL WOOD COMBUSTION STANDARDS 

As of the end of 1983, 10.6 million residential wood 
combustion units were estimated to be in use. Annual sales of 
new RWC units are projected to continue at approximately 1 
million units per year. 



EPA MEMORANDUM ON WOOD STOVES 139 



-2- 

Actual emissions from residential wood combustion units 
vary greatly depending upon the design and operation of the 
combustion device plus the type and condition of the fuel. 
However, data clearly indicate that particulate matter (PM) 
(which includes polycyclic organic matter (POM)), carbon 
monoxide (CO), and hydrocarbon (HC) emissions are substantial 
from residential wood combustion appliances. 

It has been estimated that residential wood combustion 
contributes the following annual emissions: PM - 2.7 million 
tons, including POM - 20,000 tons; CO - 7.4 million tons; HC - 
62,000 tons. If the sales of RWC units continue at 1 million 
units each year, annual emissions would increase by the following 
estimated amounts if not controlled: PM - 216,000 tons, including 
POM 1,600 tons; CO - 584,000 tons; HC - 5,000 tons. 

Recent advances in both catalytic and non-catalytic 
woodstove control technology have brought about significant 
reductions (50 to greater than 90 percent of the emissions from 
conventional air-tight RWC units). EPA is aware that emissions 
from woodstoves pose a significant and growing problem, and 
that effective control technology is commercially available. 
On August 2, 1985, EPA announced plans to develop New Source 
Performance Standards for Residential Wood Combustion Units 
(50 FR 31504). 

SELECTION OF THIS ITEM FOR REGULATORY NEGOTIATION 

To qualify for negotiation, an item must meet the 
following selection criteria: 

o be at the pre-proposal stage of development; 

o have a relatively limited number of identi- 
fiable parties who will come to the table 
to negotiate in good faith; 

o present a limited number of specific issues 
for which sufficient information and techno- 
logy is in hand for resolution; and 

o contain a time-forcing factor which lends an 
air of urgency to its issuance. 

We feel that this item meets the selection criteria. It 
is at the pre-proposal stage; affected interests are identifiable 
and limited in number; we have contacted potential participants 
and believe they are interested in negotiating this item in 
good faith; sufficient information is in hand (and/or will be 
developed during the negotiations) to resolve the issues the 
program office has identified for negotiation; and EPA is 
publicly committed to proposing the regulation expeditiously. 



140 THE CONVENING PROCESS 



-3- 

DESCRIPTION OF SIGNATURE DOCUMENTS 

Federal Advisory Committee Charter 

To conduct negotiations, we must first charter a Federal 
Advisory Committee. The charter is a document that you sign 
which explains what the committee will do. After GSA and 0MB 
consultation, we file it with the appropriate Congressional 
Committees. 

Letter to GSA 

Obtaining a charter requires that you send a proposed 
charter and a letter to GSA justifying the need to establish 
the committee. GSA then forwards the request to 0MB. We 
have already been in touch with GSA and 0MB and anticipate no 
major difficulties. 

Federal Register Notice 

The Federal Register Notice announces EPA's intent to 
establish an advisory committee to negotiate new source 
performance standards for residential wood combustion units. 
It lists our reasons for selection, the key issues we expect to 
discuss, potentially affected parties and participants, the date 
of an open organizational meeting with potential participants, 
and the tentative date of the first negotiation meeting. It 
clearly invites the public to comment and indicates that we are 
open to the possibility of not negotiating this new source per- 
formance standard based on the comments we receive or further 
information we obtain. Parties or interests who feel that they 
are not adequately represented by the listed participants may 
so comment, give their rationale, and request membership or 
representation on the negotiating committee. 

RECOMMENDATION 

Charles Elkins joins me in requesting that you sign the 
attached GSA letter, charter, and Federal Register Notice. 



Concur; 



Charles L. Elkins 

Acting Assistant Administrator 

for Air and Radiation 



Attachments (3) 



WOOD STOVE INTENT NOTICE 



141 



51 Fed. Reg. 4800 (Feb. 7, 1986) 



ENVIRONMENTAL PROTECTION 
AGENCY 

(FRL-2965-8] 

Intent To Form an Advisory Committee 
To Negotiate New Source 
Performance Standards for Residential 
Wood Combustion Units 

summary: EPA is considering 
establishing a new Advisory Committee 
under the Federal Advisory Committee 
Act (FACA). The Committee's purpose 
would be to negotiate issues leading to a 
Notice of Proposed Rulemaking on New 
Source Performance Standards (NSPS) 
for Residential Wood Combustion 
(RWC) units, under section 111 of the 
Clean Air Act, as amended. The 
Committee would consist of 
representatives of parties with a 

4801 

definable stake in the outcome of the 
proposed rule. 

date: EPA must receive comments and 
suggestions by March 10, 1986. 
ADDRESS: Comments should be 
submitted (in duplicate if possible) to: 
Central Docket Section LE-131, 
Environmental Protection Agency, Attn: 
Docket No. A-64-49. 401 M Street. SW.. 
Washington, DC 20460. 
Docket No. A-84-49. containing 
materials relevant to this rulemaking, is 
located in the U.S. Environmental 
Protection Agency. Central Docket 
Section, West Tower Lobby, 401 M 
Street SW., Washington. DC. The docket 
may be inspected between 8 a.m. and 4 
p.m. on weekdays, and a reasonable fee 
may be charged for copying. 
FOR FURTHER INFORMATION CONTACT: 
Chris Kirtz, Director. Regulatory 
Negotiation Project, U.S.E.PjV. (PM-223), 
401 "M" Street SW., Washington. DC 
20460. (202) 362-7565. 



SUPPLEMENTARY INFORMATION: 
Outline of Notice 

/. Project Background 

A. The Concept of Rej(ulalory Nct(Oliat)un 

B. Negotiations to Date 

C. Residential Wood Combustion (RWC) 
Standards as a Negotiation Item 

1. Need for Staodards 

2. Selection as a Negotiation lleia 

D. Key Issues for Negotiation 

//. Negotiation Procedures 

A. Format Negotiation Procedures 

1. Procedure for Establishing an Advisory 
Committee. 

2. Participants. 

3. Rcque^its forKeprcsentation. 

4. Final Notice. 

5. Tentative Schedule. 

6. Failure of Advisory Committee to Reach 
Consensus. 

13. Internal Negotiation Pj-occdures 

1. Facilitator 

2. Cood Faith Negotiation 

3. Administrative Support and Meetir\j>s 

4. Defining Consensus 

5. Record of Meetings 

G. Committee Procedures 

7. Potential Interests and Participants 

Outline of Notice 

/. Project Background 

A. The Concept of Regulatory 
Negotiation 

The increasingly formal nature of the 
rulemaking process can impede an 
agency in developing sound regulatory 
solutions. The traditional rulemaking 
process of comment and reply can lead 
to adversarial relationships among 
participants and little opportunity for 
the exchange of information and ideas 
conducive to developing workable 
solutions. 

On February 22, 1983. EPA announced 
in the Federal Register. 46 FR 7494-7495, 
that it was beginning a project to 
explore the extent to which negotiations 
among interested parties could serve as 
an alternative to its current rulemaking 
process — an alternative that could 
better conserve time and resources and 
minimize costly litigation. 



142 



THE CONVENING PROCESS 



The project's stated purposes are to 
test: 

• The value of developing regulations 
by negotiation; 

• The types of regulations which are 
most appropriate for negotiated 
rulemakings: and 

• The procedures and circumstances 
which best foster negotiations. 

The project brlags together a balanced 
mix of parties and interests to negotiate 
at the pre-proposal stage. The goal of 
each negotiation is to reach a consensus 
on which to base a Notice of Proposed 
Rulemaking (NPRM). EPA intends to use 
any'consensus that is justified and 
within its statutory authority as the 
basis of the proposal Negotiations are 
conducted through Advisory 
Committees chartered under the Federal 
Advisory Committee Act (FACA). All 
procedural requirements of the 
Administrative Procedure Act and other 
applicable statutes continue to apply. 

A senior official selected by the EPA 
office responsible for developing the 
rule acts as chief negotiator for EPA. 
Individuals representing definable 
interests in the regulated community, 
enforcement ofTtcials. and other affected 
stakeholders negotiate on behalf of their 
constituencies. A neutral facilitator 
chairs the negotiations, keeps the 
process moving smoothly, and assists in 
resolving.disputes. 

EPA is optimistic that this process can 
produce better regulations, use all 
parties' time and resources more wisely, 
and reduce litigation and uncertainty. 

B. Negotiations to Date 

EPA has already successfully 
conducted two such regulatory 
negotiations and has a third well 
underway. The first involved 
Nonconformance Penalties under 
section 206(g) of the Clean Air Act, as 
amended. In the time allowed, the group 
achieved consensus on the core issues. 
This consensus was used as the basis of 
the proposed rulemaking. The proposal 
drew only thirteen comments, all from 
participants supporting the consensus. 
Six specifically requested that EPA 
conduct additional negotiations on other 
proposed regulations. A final rule was 



issued on August 30. 1985. It has not 
been challenged legally. 

The second involved Emergency 
Pesticide Exemptions under section 18 
of the Federal Insecticide, Fungicide, 
and Rodenticide Act (FIFRA). Again 
within the time allowed, the group 
reached full consensus on the exact 
wording for the proposal and preamble. 
EPA received nineteen comments on the 
proposal. Three were from participants 
supporting the proposal; the others 
raised relatively narrow points of 
interpretation or concern. A final rule 
was issued on January 15, 1986. 

The third negotiation, on Farmworker 
Protection Standards for Agricultural 
Pesticides, started on November 4. 1985, 
and is scheduled to end on March 7, 
1986. 

C. Residential Wood Combustion (RWC) 
Standards as a Negotiation Item 

1. Need for Standards. At the end of 
1983, EPA estimates that 10.8 million 
RWC units were in use. Annual sales of 
new RWC units are projected to 
continue at a rate of approximately 1 
million units per year. 

Actual emissions from RWC units 
vary greatly, depending upon the design 
and operation of the combustion device 
and the type and condition of the fuel. 
However, data clearly indicate that 
particulate matter (PM) (which includes 
polycyclic oi^anic matter (POM)], 
carbon monoxide (CO), aixd 
hydrocarbon (HC) emissions are 
substantially from RWC appliances. 

EPA estimates that RWC units 
contribute the following annual 
emissions: PM — 2.7 million tons, 
including POM— 20,000 tons: CO— 7.4 
million tons; HC— 62,000 tons. If the 
sales of RWC units continue at a rate of 
1 million units each year, annual 
emissions would increase by the 
following estimated amounts if not 
controlled: PM— 216,000 tons, including 
POM— 1,600 tons; CO— 584.000 tons; and 
HC— 5,000 tons. 

Recent advances in both catalytic and 
non-catalytic woodstove control 
technology have brought about 
significant reductions (50 to greater than 
90 percent) of the emission from 



WOOD STOVE INTENT NOTICE 



143 



conventional air-tight RWC units. EPA 
is aware that emissions from 
woodstoves pose a significant and 
growing problem, and that effective 
control technology is commercially 
available. On August 2, 1985. EPA 
announced plans to develop New Source 
Performance Standards for Residential 
Wood Combustion Units (50 FR 31504). 

2. Selection as a Negotiation Item. 
EPA believes that proposed NSPS for 
RWC units may be appropriate for 
development by the regulatory 
negotiation process. EPA has made a 
preliminary inquiry among potential 
parties and representatives of identified 

4802 

interests to determine if EPA's selection 
criteria for choosing a candidate for a 
negotiated rulemaking were satisfied. To 
qualify under EPA'S' selection criteria, 
an item must: 

• Be at a pre-proposal stage of 
development; 

• Have a relativelyl small number of 
identifiable parties, in an appropriate 
balance and mix, who havie a good faith 
interest in negotiating a consensus; 

• Present a limited number of related 
issues for which sufficient information is 
available for resolution; and 

• Have a tifne factor that lends some 
urgency to issuing the regulation. 

On the basis of this preliminary 
inquiry, EPA believes that its selection 
criteria have been met and that 
negotiations on this rule can be 
successful. This item is at the pre- 
proposal phase of development, affected 
interests are limited in number, and 
groups representing these interests are 
identifiable and in an appropriate 
balance and mix. EPA has contacted 
them and believes they are interested in 
negotiating this item in good faith, and 
are aligned on key issues to address and 
schedule and groundrules to follow. 
EPA's lead program office has identified 
a number of basic issues for which 
sufficient information is in hand (or will 
be developed during the negotiations) 
for resolution; and EPA is publicly 
committed to establishing NSPS for 
RWC units expeditiously. 



D. Key Issues for Negotiations 

We anticipate the key issues to be 
addressed will include the following: 

• How should the affected facility be 
defined? 

• What are the most appropriate 
methods and procedures for measuring 
emissions and efficiencies from 
woodstoves? This issue includes 
examining factors affecting emissions 
and measurements such as the sampling 
train, gas flow measurements, wood 
loading, bum rate, and altitude effects. 

• What is the best demonstrated 
technology? 

• In what units should the standard 
be expressed? 

• What should the numerical 
emission limit be? 

When should the emission limits 
become applicable? 

• What type of woodstove 
certification and/or lab accreditation 
program should be established? 

• What labeling requirements, if any. 
should there be? 

• How should catalyst replacement 
be addressed? 

//. Negotiation Procedures 

EPA requests public comment on 
whether it should: 

• Establish a Federal Advisory 
Committee; 

• Identify interests it believes are 
affected by the key issues listed above; 

• Identify participants who will 
adequately represent the interests 
affected by the negotiations; and 

• Use regulatory negotiations for this 
rulemaking, and the extent to which the 
issues, parties, and procedures are 
adequate and appropriate. 

This Notice also announces: 

• The date, time, location, and 
purpose of an informal organizational 
meeting to discuss whether the 
Committee should be formed and 
negotiations proceed: and 

• The tentative date. time, location, 
and subject matter of the first 
negotiation meeting (if the Committee is 
formed). 



144 



THE CONVENING PROCESS 



The following procedures and 
guidelines will apply to the Committee, 
if formed, unless they are modified as a 
result of comments received on this 
Notice or during the negotiating process. 

A. Formal Negotiation Procedures 

1. Procedure for Establishing an 
Advisory Committee. As a general rule, 
an agency of the federal government is 
required to comply with the 
requirements of FACA when it 
establishes or uses a group which 
includes non-federal members as a 
source of advice. Under FACA, an 
Advisory Committee is established only 
after both consultation with GSA and 
receipt of a charter. EPA has prepared a 
charter and has initiated the requisite 
consultation process. Only upon the 
successful completion of this process 
and the receipt of the approved charter 
will EPA form the Committee and 
commence negotiations. 

2. Participants. The negotiating group 
should not exceed 25 participants. A 
number larger than this could make it 
difficult to conduct effective 
negotiations. One purpose of this notice 
is to help determine whether the 
standard that EPA is developing would 
substantially affect interests not 
adequately represented by the proposed 
participants (listed later in this Notice). 
We do not believe that each potentially 
affected organizational or individual 
must necessarily have its own 
representative. However, we firmly 
believe that each interest must be 
adequately represented. Moreover, we 
must be satisfied that the group as a 
whole reflects a proper balance and mix 
of interests. 

3. Requests for Representation. If, in 
response to this Notice, an additional 
individual or representative of an 
interest requests membership or 
representation in the negotiating group, 
the Agency, in consultation with the 
facilitator, will determine whether that 
individual or representative should be 
added to the group. EPA will make that 
decision based on whether the 
individual or interest: 

• Would be substantially affected by 
the rule: 



• Is already adequately represented 
in the negotiating group. 

4. Final Notice. After evaluating the 
results of the organizational meeting, 
and reviewing any comments on this 
Notice and request for representation, 
EPA will issue a final notice. That notice 
will announce the establishment of a 
Federal Advisory Committee unless EPA 
decides, based on comments and other 
relevant considerations, that such action 
is inappropriate, or in the event EPA's 
charter request is disapproved. The 
negotiation process will begin once the 
Committee is appropriately chartered 
and notice is published in the Federal 
Register. 

5. Tentative Schedule. EPA will hold 
an organizational meeting on February 
12, 1986, from 9:00 a.m. until completion, 
at The National Institute for Dispute 
Resolution. 1901 L Street NW., Suite 600. 
Washington. DC. This meeting is open, 
and potential participants are 
encouraged to attend. 

The purpose of this meeting is to 
discuss whether negotiations should 
proceed, and if so, how the negotiations 
and Committee should function, what 
should and should not be covered, to 
answer questions, and to address any 
other procedural issues which may 
arise. 

If the final determination is that the 
Committee should be formed and 
negotiations should proceed, EPA plans 
to hold the first meeting of the Advisory 
Committee on March 12. 1986, at the 
National Institute for Dispute 
Resolution. At this first meeting, 
participants would complete action on 
any procedural matters outstanding 
from the organizational meeting, 
determine how best to address the 
principal issues, and begin to address 
them. 

To ensure timely issuance of the 
proposal, we intend to terminate the 
activities of the Committee if it does not 
reach consensus within four months of 
the first meeting. The process may end 
earlier if the facilitator so recommends. 

6. Failure of Advisory Committee to 
Reach Consensus. In the event the 



WOOD STOVE INTENT NOTICE 



145 



4803 

Committee is unable to reach consensus, 
EPA will proceed to develop Hs own 
proposal. 

B. International Negotiation Procedures 

1. Facilitator. EPA will use a 
facilitator. The facilitator will not be 
involved with the substantive 
development or enforcement of the 
regulation. The facilitator's role is to: 

• Chair negotiating sessions: 

• Help the negotiation process run 
smoothly: and 

• Help participants define and reach 
consensus. 

2. Good Faith Negotiation. Since 
participants must be willing to negotiate 
in good"faith and be authorized to do so. 
each organization must designate a 
senior official to represent its interests. 
This applies to EPA as well, and the 
Agency wiU designate a senior official 
of the Office of Air Quality Planning and 
Standards as its representative. 

3. Administrative Support and 
Meetings. EPA's Regulation 
Management Branch will supply 
logistical, administrative and 
management support. Meetings will be 
held in the Washijiigton area. To support 
the negotiations. EPA has pledged funds 
to ai resource pool which the National 
Institute for Dispute Resolution will 
administer. EPA expects that funds from 
private foundations will also be 
available. These funds may be used by 
the parties for such activities as training, 
technical support, computer simulations, 
and other assistance which the parties 
deem useful. To give committee 
members maximum freedom, subject to 
any applicable legal constraints, they 
will determine the procedures under 
which requests for funds will be made 
and approved. 

4. Defining Consensus. The goal of the 
negotiating process is consensus. In the 
negotiations completed to date, 
consensus has meant that each interest 
concurs in the result. We expect the 
participants to fashion their own 
working definition of this term. 

5. Record of Meetings. In accordance 
with FACA's requirements. EPA will 
keep a record of all Advisory Committee 
meetings. This record will be placed in 



the public docket for this rulemaking. 
EPA will announce Committee meetings 
in the Federal Register. Such meetings 
will generally be open to the public. 

6. Committee Procedures. Under the 
general guidance and direction of the 
facilitator, and subject to any applicable 
legal requirements, the members will 
establish the detailed procedures for 
Committee meetings which they 
consider most appropriate. 

7. Potential Interests and Participants. 
EPA has tentatively identified the 
following list of possible interests and 
parties: 

Woods tove Manufacturers 

Wood Heating Alliance 
Woodcutters Manufacturing 
Brugger Exports. Ltd. 
a-b Fabricators 
American Eagle Stoves 

Catalyst Manufacturers 

Coming Glass Works 

Public Interest Groups 

National Resources Defense Council 
Consumers Union 
Oregon Elnvironmental Council 
Consumer Federation of America 

State Officials 

Oregon Department of Environmental 

Quality 
Colorado Air Pollution Control Division 
Massachusetts Division of Air Quality 

Control 
State and Tenitorial Air Pollution 

Program Administrators 
The Association of Local Air Pollution 

Control Officials 

Federal Government 
Enviromnealal Protection Agency 

Comments and suggestions on this 
tentative list of representatives are 
invited. Anyone wishing to be included 
should explain the interest they 
represent and why that interest is not 
already represented. The listing of a 
potential group does not necessarily 
mean that the group has agreed to 
participate. 

Dated: January 31. 198a 
A. Jamei Bamea. 
Deputy Administrator 
[FR Doc. 8&-2587 Filed 2-6-86; a45 am) 

BIIXINQ CODE 6560-60-M 



146 



THE CONVENING PROCESS 



51 Fed. Reg. 8241 (March 10, 1986) 



[OPPE-FRL-2981-9] 

New Source Performance Standards 
for Residential Wood Combustion 
Units Negotiated Rulemaking Advisory 
Committee; Establishment and Open 
Meeting 

As required by section 9(a)(2) of the 
Federal Advisory Committee Act (Pub. 
L 92-463), we are giving notice of the 
establishment of an Advisory 
Committee to negotiate New Source 
Performance Standards for Residential 
Wood Combustion Units. We have 
determined that this is in the public 
interest and will assist the Agency in 
performing its duties prescribed in 
section 111 of the Clean Air Act, as 
amended. 

Copies of the Committee charter will 
be Mled with appropriate committees of 
Congress and the Library of Congress. 

The committee's initial meeting will 
be held on Thursday, March 20, and 
Friday morning, March 21, 1986. Due to 
the need for an expeditious regulation, 
as a result of a January 1987 court- 
ordered deadline to issue a proposed 
rule, notice of this two-day meeting is 
being given less than 15 days prior to the 
meeting itself. The Agency issued this 
Notice promptly once the meeting dates 
were confirmed. The Committee has 
notified interested parties on its mailin;; 
list of the meeting dates. 

Both March 20th and 2l8t. the meeting 
will be held at the National Institute for 
Dispute Resolution, 1901 L Street NW.. 
Suite 600, Washington, DC. On March 
20th. the meeting will start at 9:00 a.m. 
and run until completion: on March 21 at, 
the meeting will start at 9:00 a.m. and 
run until approximately 12:00 noon. 

The purpose of the meeting is to 
complete any outstanding procedural 
matters, to determine how best to 
address the substantive issues, and to 
begin to address them. 



If interested in attending, or in 
receiving more information, please 
contact Chris Kirtz at (202) 382^7505. 

Dated: March 6, 1986. 
Milton Russell, 

Assistant Adminislivtor for Policy. Phmniir^ 
and Evaluation. 

|KR Doc. li&-5294 Filed 3-7-86; 10:19 atnj 
BILLING CODE CSCO-SO-M 



FRA NOTICE OF INTENT 



147 



59 Fed. Reg. 42200 (Aug. 17, 1994) 



DEPARTMENT OF TRANSPORTATION 
Federal Railroad Administration 
49 CFR Part 214 

[FRA Docket No. RSOR 13, Notice No. 1] 

RIN 2130-AA86 

Roadway Worker Protection 

agency: Federal Railroad 
Administration (FRA); DOT. 

ACTION: Notice of Proposal to Form a 
Negotiated Rulemaking Advisory 
Committee and Request for 
Representation. 

SUMMARY: FRA proposes to establish a 
Negotiated Rulemaking Advisory 
Committee under the Negotiated 
Rulemaking Act of 1990 and the Federal 
Advisory' Committee Act to develop a 
recommended rule concerning the 
protection of railroad roadway workers. 
The Committee would adopt its 
recommendations through a negotiation 
process. The Committee would be 
composed of persons who represent the 
interests affected by the rule, such as 
labor organizations, railroads, railroad 
associations, contractor associations, 
and the government. FRA invites 
interested parties to submit nominations 
and applications for membership on the 
Committee. 

DATES: FRA must receive written 
comments and requests for 
representation or membership by 
September 16, 1994. 

ADDRESSES: All written comments 
should be submitted in triplicate to the 
Docket Clerk, Office of Chief Counsel, 
FRA, 400 Seventh Street. S.W., Room 
8201. Washington. D. C. 20590. 

FOR FURTHER INFORMATION CONTACT: 
Christine Beyer, Trial Attorney, Office 
of Chief Counsel, FRA, 400 Seventh 
Street, S.W., Room 8201, Washington. 
D. C. 20590 (Telephone: 202-366-0621). 



SUPPLEMENTARY INFORMATION: 
I. Background 

(A) History 

The Rail Safety Enforcement and 
Review Act, Pub.L. No. 102-365. 106 
Stat. 972, enacted September 3, 1992, 
required FRA to review its track safety 
standards and revise them based on data 
presented during that review. Among 
the topics to be addressed was "an 
evaluation of employee safety." FRA 
issued an Advance Notice of Proposed 
Rulemaking (ANPRM) on November 16, 

1992 (57 FR 54038) to announce the 
opening of a proceeding to amend the 
Federal Track Safety Standards (49 CFR 
Part 213). That ANPRM addressed the 
general topics to be considered, 
including standards for railroad track 
itself, and protecting maintenance-of- 
way and odier non-operating railroad 
employees from the hazards of moving 
railroad equipment. 

As part of that proceeding. FRA 
conducted a series of workshops to 
obtain the industry's views on the need 
for and substance of any changes to 
FRA's regulations. One such workshop 
session, announced in Notice No. 4 of 
that ANPRM issued on February 18, 

1993 (58 FR 8928), and held in 
Washington, D.C. on March 31, 1993 
addressed specifically the issue of 
protection of roadway workers from 
being struck by moving trains and 
equipment. Since that workshop, FRA 
has received petitions for emergency 
orders and rulemaking on the topic from 
the Brotherhood of Maintenance-of-Way 
Employees and the Brotherhood of 
Railroad Signalmen. 

FRA originally plaimed to include 
protection from moving trains and 
moving equipment into a new Subpart 
G of 49 CFR Part 213, but it will now 
be considered as part of 49 CFR Part 
214, Railroad Workplace Safety. Given 
FRA's desire to address this issue on an 
expedited basis, and because it relates 
more closely to workplace safety than to 
track standards, this proceeding is now 
separated from FRA Docket No. RST- 



148 



THE CONVENING PROCESS 



9Q-1 and has been placed in FRA 
Docket No. RSOR 13. Items related to 
this subject which were submitted as 
part of Docket No. RST-90-1 will be 
considered as part of this proceeding, as 
will the transcript of the public 
workshop on March 31, 1993. 

(B) Purpose 

FRA is taking this action for the 
purpose of reducing the risk of death or 
injury railroad roadway workers face 
when struck by moving trains and 
railroad equipment. Since 1989, 21 
roadway workers have been fatally 

42201 

injured by moving trains and 
equipment. Eight workers were struck 
by trains while performing work, three 
were struck by trains on track adjacent 
to the work location, five stepped irito 
a train's path, and five were struck by 
maintenance-of-way equipment. These 
fatalities are among the following crafls: 
signal maintalners, machine operators, 
welders, track foremen, track inspectors, 
and track laborers. 

These figures reflect a serious 
problem that may require changes in 
railroad operating rules, training and 
practices. In order to address the 
problem in the short term, FRA 
Administrator Molitoris convened a 
meeting on June 3, 1994 at which FRA 
distributed summaries of the fatalities, 
and enlisted the support of the industr}' 
to address the issue immediately on 
each railroad through local labor/ 
management committees. FRA also 
discussed the option of proceeding with 
a negotiated rulemaking, and has since 
preliminarily concluded that this issue 
is an appropriate subject for negotiated 
rulemaking. 

(C) Terminology 

FRA proposes that the term "roadway 
worker" rather than "maintenance of 
way employee" be used in this 
proceeding to define the subject 
persons. This term would encompass all 
employees of a railroad or a contractor 
to a railroad who construct, maintain, 
inspect or repair railroad tracks, 
structures, signal and train control 



systems, communication systems, utility 
systems, or any other fixed property of 
a railroad while in close or potentially 
close proximity to tracks on which 
trains or equipment can be operated. 
The term would apply regardless of the 
craft or class title of the employee, 
affiliation witli any labor organization, 
or rank within the railroad organization. 
Examples of subject persons would be 
trackmen, signal maintainers, bridge 
workers, communication technicians, 
electricians, surveyors, roadmasters and 
chief engineers, while performing their 
duties along the line of road. 

FRA believes that extensive input 
from all interested parties is necessary 
to develop a rule tliat will address both 
the risk of injury from moving railroad 
equipment and the operational concerns 
that this issue presents. Therefore, this 
notice announces FRj\'s proposal to 
address these issues through a 
negotiated mlemaking. 

Set forth below are the basic concepts 
of negotiated rulemaking, suggested 
procedures to be followed, and criteria 
for participant selection. In order to 
begin this process shortly. FRA asks that 
parties representing interests affected bv 
a roadway worker safety rule request 
appointment or representation on the 
Committee within thirty days of 
publication of this notice. 

II. Regulatory Negotiation 

Due to the increasing complexity and 
formalization of the written rulemaking 
process, it can be difficult for an agency 
to craft effective regulatory solution}; to 
certain problems. In the typical . 
rulemaking process, the participants 
often develop adversarial relationships 
that prevent effective communication 
and creative solutions. The exchange of 
ideas that may lead to solutions 
acceptable to all interested groups often 
does not occur in the traditional notice 
and comment system. As the 
Administrative Conference of the 
United States (ACUS) noted in its 
Recommendation 82—4: 

Experience indicates that if the parties in 
interest were to work together to negotiate 
the text of a proposed rule, they might be 



FRA NOTICE OF INTENT 



149 



able in some circumstances to identify the 
major issues, gauge their importance to the 
respective parties, identify the information 
and data necessary to resolve the issues, and 
develop a rule that is acceptable to the 
respective interests, all within the contours 
of the substantive statute, 

ACUS adopted this recommendation 
in "Procedures for Negotiating Proposed 
Regulations," 47 FR 30708. June 18, 
1982. The thrust of the recommendation 
is that representatives of all interests 
should be assembled to discuss the 
issue or hazard and all potential 
solutions, reach consensus, and prepare 
a proposed rule for consideration by the 
agency. After public comment on any 
proposal issued by the agency, the 
group would reconvene to review the 
comments and make recommendations 
for a final rule. This inclusive process 
is intended to make the rule more 
acceptable to all affected interests and 
prevent the need for petitions for 
reconsideration and litigation that often 
follow promulgation of a final rule. 

The movement toward negotiated 
rulemaking gained impetus with 
enactment of the Negotiated Rulemaking 
Act of 1990 (Reg-Neg). 5 U.S.C. § 561. et 
seq. More recently, President Clinton 
issued Executive Order 12866 (EO) (58 
FR 51735, October 4, 1993), which 
states the need to reform the current 
regulatory process into one thai is 
effective, consistent, and 
understandable. The objectives of the 
EO are: 

lo reaffirm the primacy of Federal agencies 
ill the regulatory decision-making process; to 
restore the integrity and legitimacy o." 
regulatory reviews and oversight; and to make 
the process more accessible and open lo the 
public. 

Id. Section 6(a) of the EO charges 
government agencies with providing the 
public meaningful participation in the 
regulator)' process: 

In particular, before Issuing a notice of 
proposed rulemaking, each agency should, 
where appropriate, seek the involvement of 
those who are intended to benefit from and 
those expected to be burdened by any 
regulation . . . Each agency is also directed 
to explore and, where appropriate, us(! 
consensual mechanisms for developing 
regulations, including negotiated ru)cmakin<i. 



Id. at 51740. 

Although relatively new. negotiated 
rulemakings have been used 
successfully by many regulatory 
agencies, including the Federal Aviation 
Administration, the United States Coast 
Guard, the Environmental Protection 
Agency, and the Occupational Safety 
and Health Administration. FRA now 
intends to begin this process in a 
formalized manner for the fir.st time, 
and does so with enthusiasm and high 
expectations, FRA welcomes the 
opportunity to work with those who 
will be affected directly by a roadway 
worker safety rule, and is confident that 
the agency and the industry' will benefit 
from the process by creating an effoclivo 
and reasonable regulation. 

Pursuant to section 563(q) of K(!g-Ncji. 
an agency considering rulemiiking by 
negotiation should consider whothifr: 

(1) There is a need for the rule; 

(2) There is a limited number of 
identifiable interests; 

(3) These interests can be adequately 
represented by persons willing lo 
negotiate in good faith to rfeach a 
consensus; 

(4) There is a reasonable likelihood that ih'.!. 
committee will reach consensus within a 
fixed period of time; 

(5) The negotiated rulemaking procedure 
will not unreasonably delay the notice of 
proposed rulemaking; 

(6) the agency has adequate resources and 
is willing to commit such resources to the 
process; and 

(7) The agency is committed to use the 
result of the negotiation in formulating a 
proposed rule if at all possible. 

For the reiasons stated in. this Notice. 
FRA believes that these criteria have 
boeri met with respect to railroad 
roadway safety issues. 

The regulatory negotiation FRA 
proposes would be carried out by an 
advisory committee (Committee) created 
under the Federal Advisory Committee 
Act (FACA), as amended, 5 U.S.C. App., 
and in a manner that refiects 
appropriate rulemaking objectives, 
including pertinent Executive Orders. 
FRA will be represented on tlie 
Committee and will take an active part 
in the negotiations as a Committee 
member. However, pursuant to section 



150 



THE CONVENING PROCESS 



42202 

566(c) of Reg-Neg, the person(s) 
designated to represent FRA would not 
facilitate or otherwise chair the 
proceedings. The agency is committed 
to this process and is quite optimistic 
that it will result in the issuance of an 
NPRM and final rule that will be 
acceptable to the members of the 
Committee. Because of the need to issue 
a rule on this subject, FRA is prepared 
to go forward with an NPRM that is not 
the product of the negotiations in the 
unlikely event the negotiation fails or if 
the Committee's recommendation is not 
acceptable. 

III. Procedures and Guidelines 

The following proposed procedures 
and guidelines would apply to this 
process, subject to appropriate changes 
made as a result of comments received 
on this Notice or as are determined to 
be necessary during the negotiating 
process. 

(A) Facilitator: FRA is seeking the 
services of a facilitator for the 
negotiating group. The facilitator will 
not be involved with substantive 
development of this regulation. This 
individual will chair the negotiations, 
may offer alternative suggestions toward 
the desired consensus, will help 
peirticipants define and reach 
consensus, and will determine the 
feasibility of negotiating particular 
issues. The facilitator may ask members 
to submit additional information or to 
reconsider their position. FRA will 
contact mediation organizations for 
potential candidates, and will consider 
nominations made in comments 
received in response to this Notice. 

(B) Feasibility: FRA has examined the 
issues and interests involved and has 
made a preliminary inquiry among 
representatives of those interests to 
determine whether it is possible to 
reach agreement on: (a) individuals to 
represent those interests; Cb) the 
preliminary scope of the issues to be 
addressed; and (c) a schedule for 
developing a notice of proposed 
rulemaking. On the basis of the history 
of this issue and our preliminary 



inquiry, we believe that regulatory 
negotiation could be successful in 
developing a workable proposal for a 
notice of proposed rulemaking and a 
final rule, and that the potential 
participants listed below would 
adequately represent the affected 
interests. 

(C) Participants and Interests: The 
number of committee participants 
generally should not exceed 25. 

Please note that each individual or 
organization affected by a final rule 
need not have its own representative on 
the Committee. Rather, each interest 
must be adequately represented, and the 
Committee should be fairly balanced. 
Individuals who are not part of the 
Committee may attend sessions and 
confer with or provide their views to 
Committee members. 

The following interests have been 
tentatively identified as those that are 
likely to be significantly affected by the 
rule; 

(1) Railroad labor organizations: 

(2) Railroads, including classes 1 
through 3, the short lines, public transit 
operations, and their associations; 

(3) Contractors to raibroads who 
perform roadway work; and 

(4) The Federal government. 

FRA proposes that persons selected 
by the various interests be named to the 
Committee. The follovkring interests have 
been tentatively identified as those that 
would supply Committee members: 

(1) The Brotherhood of Maintenance- 
of-Way Employes; 

(2) The Brotnerhood of Railroad 
Signalmen; 

(3) The American Train Dispatchers 
Association; 

(4) The Association of American 
Railroads; 

(5) The American Short Line Railroad 
Association; 

(6) American Public Transit 
Association; and 

(7) FRA. 

As indicated in paragraph F of this 
notice, FRA invites applications for 
representation from any interests that 
will be affected by a rule, but are not 
named in this list. FRA is committed to 
an open and comprehensive negotiation, 
and therefore strongly encourages any 



FRA NOTICE OF INTENT 



151 



such party to file an application for 
membership. These applications may 
come from railroads, labor 
organizations, associations, or oth3r 
interests, must be filed within thirty 
days, and must meet the requirements 
set forth in this notice. Also, the 
interests listed above and those who 
apply for representation on the 
Committee should provide the name(s) 
of the individual(s) they propose to 
represent their interes'ts. The Committee 
should not exceed twenty-five members. 

(D) Good Faith: Participants must be 
committed to negotiate in good faith. It 
is therefore important that senior 
individuals within each interest group 
be designated to represent that interest. 
No individual will be required to 
"bind" the interests he or she 
represents, but the individual should be 
at a high enough level to represent the 
interest with confidence. For this 
process to be successful, the interests 
represented should 'be willing to accept 
the final Committee product. 

(E) Notice of Intent to Establish 
Advisory Committee and Request for 
Comment: In accordance with the 
requirements of FACA, an agency of the 
Federal government cannot establish or 
utilize a group of people in the interest 
of obtaining consensus advice or 
recommendations vmless that group is 
chartered as a Federal advisory 
committee. It is Ihe purpose of this 
Notice to indicate our intent to create a 
Federal advisory committee, to identify 
the issues involved in the rulemaking, 
to identify the interests affected by the 
rulemaking, to identify potential 
participants who will adequately 
represent those interests, and to ask for 
comment on the use of regulatory 
negotiation and on the identification of 
the issues, interests, procedures, and 
pajticipants. 

(F) Requests for Representation: One 
purpose of this Notice is to determine 
whether interests exist that may be 
substantially affected by a rule, but have 
not been represented in the list of 
prospective Committee members. Please 
identify such interests if they exist. Each 
application for membership or 



nomination to the Committee should 
include: (i) the name of the applicant or 
nominee and the interests such person 
would represent; (ii) evidence that the 
applicant or nominee is authorized to 
represent parties related to the interests 
the person proposes to represent; (iii) a 
written commitment that the applicant 
or nominee would participate in good 
faith; and (iv) the reasons any 
representative identified in the Notice 
does not represent the interests the 
nominee is alleged to represent. If an 
additional person or interest requests 
membership or representation on the 
Committee, FRA shall determine (i) 
whether that interest will be 
substantially affected by the rule, (ii) if 
such interest would be adequately 
represented by an individual already on 
the Committee, and (iii) whether the 
requester should be added to the group 
or whether interests can be consolidated 
to orovide adequate representation. 

iG) Final Notice: After evaluating 
comments received as a result of this 
notice, FRA will issue a final notice 
announcing the establishment of the 
Federal advisory committee, unless it 
determines that such action is 
inappropriate in light of comments 
received, and the composition of the 
Committee. After the Committee is 
chartered the negotiations would begin. 

(H) Administrative Support and 
Meetings: Staff support would be 
provided by FRA and meetings would 
take place in Washington, D.C., unless 
agreed otherwise by the Committee. 

(I) Tentative Schedule: If the 
Committee is established and selected, 
FRA will publish a schedule for the first 

42203 
meeting in the Federal Register. The 
first meeting will focus on procedural 
matters, including dates, times, and 
locations of future meetings. Notice of 
subsequent meetings would also be 
published in the Federal Register before 
being held. 

FRA expects that the Committee 
would reach consensus and prepare a 
report recommending a proposed rule 
within six months of the first meeting. 
However, if unforeseen delays occur, 



152 



THE CONVENING PROCESS 



the Administrator may agree to an 
extension of that time if a consensus of 
the Committee beUeves that additional 
time will result in agreement. The 
process may end earlier if the facilitator 
so recommends. 

(J) Committee Procedures: Under the 
general guidance of the facilitator, and 
subject to legal requirements, the 
Committee would establish the detailed 
procedures for meetings which it 
considers appropriate. 

(K) Recora of Meetings: In accordance 
with FACA's requirements, FRA would 
keep a record of all Committee 
meetings. This record would be placed 
in the public docket for this rulemaking. 
Meetings of the Committee would 
generally be open to the public. 
(L) Consensus: The goal of the 
negotiating process is consensus. FRA 
proposes tLat the Committee would 
develop its own definition of consensus, 
which may include unanimity, a simple 
majority, or substantial agreement such 
that no member will disapprove the 
final recommendation of the Committee. 
However, if the Committee does not 
develop its own definition, consensus 
shall be unanimous concurrence. 

(M) Notice of Proposed Rulemaking 
and Final Rule: The Committee's first 
objective is to prepare a report 
containing a notice of proposed 
rulemaking, preamble, and economic 
evalutation. If consensus is not obtained 
on some issues, the report should 
identify the areas of agreement and 
disagreement, smd explanations for any 
disagreement. It is expected that 
participantswill address costAienefit, 
paperwork reduction, and regulatory 
flexibility requirements. FRA would 
prepare an economic assessment if 
appropriate. 

FRA would issue the proposed rule as 
prepared by the Committee imless it is 
inconsistent with statutory authority of 
the agency or other legal requirements 
or does not, in the agency's view, 
adequately address the subject matter. If 
that occurs, FRA would explain the 
reasons for its decision, or would 
modify the proposal in a way that 
allows the public to distinguish 
modifications from the original 
proposal. 



Tlie Committee would reconvene to 
review comments received in response 
to publication of the proposed rule and 
would negotiate to produce a 
recommended final rule. FRA would 
issue the recommended final rule as 
prepared by the Committee unless it is 
inconsistent with statutory authority of 
the agency or other legal requirements 
or does not, in the agency's view, 
adequately address the subject matter. If 
that occurs, FRA would explain the 
reasons for its decision, or would 
modify the recommended final rule in a 
way that allows the public to 
distinguish modifications from the 
recommended final rule. 

(N) Key Issues for Negotiation: FRA 
has reviewed correspondence, petitions, 
injury data, existing railroad operating 
practices, and has engaged in extensive 
dialogue concerning the protection of 
roadway workers. Based on this 
information and nilemaking 
requirements, FRA has tentatively 
identified major issues that should be 
considered in this negotiated 
rulemaking. Other issues related to 
roadway protection not specifically 
listed in this Notice may be addressed 
as they arise in the course of the 
negotiation. Comments are invited 
concerning the appropriateness of these 
issues for consideration and whether 
other issues should be added. 

1. Are devices available that may be 
used to reduce the risk of danger to 
roadway workers? If so, how do these 
devices work and what are the costs 
associated with them? 

2. Are there appropriate procedures or 
operating practices that may be 
instituted effectively to reduce the risk 
of danger to roadway workers? If so, 
what are the costs that will be 
associated with implementing these 
practices and procedures? 

3. Are there appropriate training 
programs that may be given to reduce 
the risk of danger to roadway workers? 
If so, at what intervals should they be 
taught? Also, what are the costs and the 
time associated with such a program? 

4. Are there peculiar topographical, 
enviroimiental, and operational 
conditions that must be considered in 
developing a program to reduce tlie risk 



J 



FRA NOTICE OF INTENT 



153 



of harm to roadway workers? What are 
the specific conditions, and how do 
they vary from one region to another, 
and from one raifroad to another? What 
would the cost for this program be? 

5. Should any program developed 
vary according to the size of a railroad? 
If 30, explain why such variations are 
necessary and how the programs should 
differ. 

6. What recordkeeping and reporting 
requirements, if any, should be 
instituted to advance the safety of 
roadway workers? What is the amount 
of time and cost involved with these 
requirements? 

7. What enforcement procedures 
should FRA utilize to ensure 
compliance with any rule developed? 

8. Aside from the obvious benefit of 
providing safer working conditions and 
so reducing the risk of injury and death 
for roadway workers, are there 
additional benefits (both monetary and 
non-monetary) that will result from the 
implementation of a rule concerning 



roadway workers? 

9. Do any railroads currently have 
internal operating practices that address 
the intended purposes of this negotiated 
rulemaking? Jf so, please provide the 
background for implementation of these 
practices, and a description of their 
effectiveness. Also, what were the costs 
and benefits associated with 
implementing these practices? 

IV. Public Participation 

FRA invites comments on all issues, 
procedures, guidelines, interests, and 
suggested participants embodied in this 
Notice. All comments and requests for 
participation should be submitted to the 
Docket Clerk, Office of Chief Counsel, 
FRA, 400 Seventh Street. SW., Room 
8201. Washington. DC 20590. 

Issued this 11th day of August 1994. 
Jolene M. MoHlorU, 
Administrator. 

(FR Doc. 94-20078 Filed 8-16-44; 8:45 ami 
BILUNQ CODE 4910-0ft-l> 



154 



THE CONVENING PROCESS 



60 Fed. Reg. 1761 (Jan. 5, 1995) 



DEPARTMENT OF TRANSPORTATION 
Federal Railroad Administration 

49 CFR Part 214 

[FRA Docket No. RSOR 13. Notice No. 2 
RIN 2130-AA861 

Roadway Worker Protection 

AGENCY: Federal Railroad 
Administration (FRA); DOT. 
ACTION: Notice of establishment of 
advisory committee for regulatory 
negotiation session and notice of first 
meeting. 

SUMMARY: The Federal Railroad 
Administration is announcing the 
establishment of an advisory committee 
to develop a report including a 
recommended proposed rule concerning 
the protection of railroad employees 
who work on or adjacent to track and 
face the risk of injury from moving 
trains and equipment. The committee 
will adopt its recommendation through 
a negotiation process. The committee is 
composed of persons who represent 
interests affected by any rule adopted on 
this issue. This notice also announces 
the time and place of <he first advisory 
committee meeting. 
DATES: The first meeting of the advisory 
committee will begin at 9:30 a.m. on 
January 23-25. 1995. 
ADDRESSES: The first meeting of the 
advisory committee will be held in 
Room 3200-3204 of the Nassif Building. 
U.S. Department of Transportation. 400 
7th Street. SW., Washington. DC. 
Subsequent meetings will be held at 
locations to be announced. 
FOR FURTHER INFORMATION CONTACT: 
Christine Beyer or Cynthia Walters. 
Trial Attorneys, Office of Chief Counsel. 
FRA. 400 Seventh Street. SW.. Room 
8201. Washington. DC 20590 
(Telephone: 202-366-0621). 



SUPPLEMENTARY INFORMATION: 

I. Background 

The Rail Safety Enforcement and 
Review Act. Pub. L. No. 102-365, 106 
Stat. 972. enacted September 3, 1992. 
required FRA to review and revise its 
track safety standards, and to complete 
"an evaluation of employee safety." 
FRA issued an Advance Notice of 
Proposed Rulemaking (ANPRM) on 
November 16. 1992 (57 FR 54038) to 
begin the proceeding to amend the 
Federal Track Safety Standards (49 
C.F.R. Part 213). Following publication 
of the ANPRM. FRA conducted a series 
of workshops to gather the industry's 
views on the need for changes to FRA's 
track regulations. One such workshop 

1762 

held on March 31, 1993 was devoted 

specifically to employee safety and 
addressed the hazards associated with 
working adjacent to moving trains and 
equipment. It was determined that for 
the purposes of any proceeding, the 
term "roadway worker" would be used 
rather than "maintenance of way 
employee" to describe the group of 
employees at risk. This term 
encompasses all employees of a railroad 
or a contractor to a railroad who 
.construct, maintain. -inspeGV,or repair 
railroad tracks, structures, signal and 
train control systems, communication 
systems, utility systems, or any other 
fixed property of a railroad while in 
close or potentially close proximity to 
tracks on which trains or equipment can 
be operated. The term applies regardless 
of the craft or class title of the employee, 
affiliation with any labor organization, 
or rank within the railroad organization. 

Because FRA decided that this issue 
should be addressed quickly and 
beoiuse the hazards involved relate 
more closely to employee safety than to 
track standards, FRA moved roadv^'ay 



FRA ESTABLISHMENT NOTICE 



155 



worker safety from the track safety 
stnndardTeview (FRA Docket No. RST- 
9()-l) and placed it infRA Docket No. 
RSOR 13. 

Since 1989. 24 roadway workers have 
been fatally injured by moving trains or 
c;quipnient. Ten workers were strucli by 
trains while performing work, four were 
struck by trains on track adjacent to the 
work location, five stepped into a train's 
path, and five were struck by 
maintenance-of-way equipment. These 
tutalities are among the following crafts: 
signal maintainers, machine operators, 
welders, track foremen, track inspectors, 
rmd track lal)orers. These figures reflect 
n serious problem that may require 
changes in railroad operating rules, 
training and practices. In the past year, 
the Brotherhood of Maintenance of Way 
Employes and the Brotherhood of 
Railroad Signalmen have filed petitions 
for emergency order and rulemaking 
that suggest pfocedures to reduce 
roadway worker fatalities and injuries. 
On June 3. 1994 FRA Administrator 
Jolene M. Molitoris convened a meeting 
with all affected industry 
representatives to discuss what actions 
the industry and the agency should lake 
to prevent injuries and fatalities among 
roadway workers. FRA and the industry 
concluded that extensive input from all 
interested parties would be necessary to 
develop a rule that will address both the 
risk of injury from moving railroad 
equipment ahd the operational concerns 
that the issue presents. Therefore, it was 
determined that the agency should 
initiate a negotiated rulemaking to 
develop new standards to protect 
roadway workers. 

On August 17, 1994 FRA published a 
notice of intent to establish an advisory 
committee (Committee) for regulatory 
negotiation to develop a report 
including a recommended proposed and 
final rule concerning protection for 
rt)adway workers (59 FR 42200). The 
notice requested comment on 
membership, the interests affected by 
the rulemaking, the issues the 
Committee should address, and.the 
procedures it should follow. The notice 
also announced the intent to seek the 



services of a professional neutral to 
facilitate the negotiations and requested 
nominations for this position from the 
industr}'. 

FRA received over 30 comments on 
the notice of intent. None of the 
comments opposed using regulatory 
negotiation for this rulemaking: most 
endorsed the process and included 
requests to serve on the Committee. 
Based on this response and for the 
reasons stated in the notice of intent, 
FRA has determined that e.<itablishing an 
advisory committee on this subject is 
necessary and in the public interest. In 
accordance with Section ^(c) of the 
Federal Advisory Committee Act, 5 
U.S.C. App. I §9(c), FRA pre[>ared a 
Charter for the establishment of the 
Roadway Worker Safety Advisory 
Committee. On December 27, 1994 the 
Office of Management and Budget 
approved the Charter, authorizing the 
Committee to begin negotiating the 
provisions of a proposed rule. 

II. Mediators 

In the notice of intent, FRA stated that 
it was seeking an impartial mediator to 
conduct the negotiation.**. FRA is 
pleased to announce that the Federal 
Mediation and Conciliation Service 
(FMCS) has agreed to provide mediation 
personnel for this purpase. 

III. Membership 

In addition to a representative from 
FRA, the Committee will consist of the 
following members: 
American Public Transit Association 

(APTA) 
The American Short Line Railroad 

Associjition (ASLRA) 
Association of American Railroads 

(AAR) 
Brotherhood of Locomotive Engineers 

(BLE) 
Brotherhood of Locomotive Engineers, 

American Train Dispatchers 

Department (ATDA) 
Brotherhood of Maintenance of Way 

Employes (BMWE) 
Brotherhood of Railroad Signalmen 

(BRS) 



156 



THE CONVENING PROCESS 



Burlington Northern Railroad (BN) 
Consolidated Rail Corporation (Conmil) 
CSX Transportation, Inc. (CSX) 
Florida East Coast Railway Company 

(FEC) 
Metra 
National Railroad Passenger Corporation 

(AMTRAK) 
Norfolk Southern Corporation (NS) 
Regional Railroads of America (RRA) 
Transport Workers Union of America 

(T\VU) 
Union Pacific Railroad Company (UP) 
United Transportation Union (UTU) 
In order to ensure balance on the 
Committee, the BKIWE and BRS will be 
represented by more than one 
individual: five for the BM\VE and three 
for the BRS. FRA was not able to grant 
requests for multiple seats made by two 
other organizations. APTA and RRA 
each submitted two names for 
membership, and FRA chose one name 
from each organization. In making those 
decisions, the agency selected the 
individuals with operating experience 
rather than the lawyers that were 
nominated by APTA and RR.^. FRA 
believes that the Committee will benefit 
greatly from members who have actual 
knowledge of railroad operating 
practices and hands-on field experience 
with those practices. 

FRA regrets being unable to 
accommodate all requests for 
membership on the Committee. Several 
factors, whicli wer« listed in the notice 
of intent, guided FRA's decision to limit 
the Committee's size to 25. The 
Committee must be kept to a size that 
permits effective negotiation, but that 
ensures all interests a voice in the 
recommendation adopted. Although 
FRA would have preferred a smaller 
Committee, the agency erred on the side 
of inclusion to be certain that all 
interests affected by a rule would be 
represented in this process. 
Summarized below is mA's rationale 
for denying the remaining applications 
for membership. 

,The Chicago and North Western 
Railway Company (CNW) requested 
representation on the Committee, but 
unfortunately could not be selected. 
Other Class 1 railroads on the 



Committee work with operating 
procedures, environmental conditions, 
topographical characteristics, and 
employee relations that are quite similar 
to those of CNW. Each of these factors 
may impact the content of a 
recommended proposed rule and so it is 
important that they be fully represented. 
However, FRA believes that AAR. BN, 
CSX, Conrail, NS, and UP adequately 
represent CNW's interests. 
The Massachusetts Bay 
Transportation Authority (MBTA) 

17G3 

petitioned for membership on the 
Committee, but was not selected. MBTA 
is a commuter line in the northeast with 
operational characteristics that are very 
similar to those of Amtrak. a Committee 
member. Also, APTA's Committee 
member will represent all commuter 
lines in this proceeding. Therefore, FRA 
believes that MBTA's interests will be 
adequately represented by the other 
commuter rail organizations on the 
Committee. 

The Long Island Rail Road (LIRR) 
requested Committee membership and 
nominated its Executive Director of 
System Safety to serve as its 
representative. Although FRA was not 
able to select LIRR for Committee 
membership, its nominee will serve on 
the Committee representing the interests 
of APTA and all public transit 
organizations. Therefore, URR's 
interests will be effectively considered 
during the negotiation process. 

The Wisconsin Central Ltd. (WC) 
requested representation on the 
Committee and nominated its Vice 
President of Engineering to represent its 
interests. This individual was also 
nominated to represent RRA. FRA was 
unable to'select WC individually, but its 
nominee has been cho.sen to represent 
RRA and all regional railroads. 
Therefore, WC's interests will be 
adequately addressed in the negotiation 
process. 

Finally, the National Railroad 
Construction and Maintenance 
Association, Inc. (NRCMA) filed a 
request for membership jointly with 
RRA, and nominated its Executive Vice 



FRA ESTABLISHMENT NOTICE 



157 



President to represent the interests of 
NRCMA and RRA. As indicated above, 
RRA filed a second application for 
representation asking that WC's Vice 
President of Engineering also represent 
their interests. As already stated, this 
individual has been chosen to represent 
RRA (and WC implicitly) because he 
brings extensive hands-on experience to 
the proceeding. FRA deliberated over 
NRCMA's application, and determined 
that its interests will be effectively 
represented by the railroads and labor 
organizations on the Committee who 
currently have primary responsibilities 
for protecting roadway workers. 
NRCMA's duties derive from and are 
subject to those of the railroads with 
whom they contract for maintenance 
and construction work. Given the 
limitations the agency faces in creating 
a Committee of reasonable size, and the 
broad spectrum of railroads and 
employee crafts represented on the 
Committee, FRA believes that NRCMA's 
interests will be effectively addressed in 
this process. Also, public participation 
will be a key component of this process; 
all Committee meetings will be open to 
the public, and the Committee is 
expected to devise procedures that will 
periodically permit comment from the 
public. FRA will hold a public hearing 
after issuing a proposed rule, and will 
invite and consider comments from 
organizations such as the NRCMA 
before promulgating any final standard. 

IV. Participation by Non-Members 

FRA believes that public participation 
is critical to the success of this 
proceeding. Participation is not limited 
to Committee members. Negotiation 
sessions will be open to the public, so 
interested parties may observe the 
negotiations and communicate their 
views in the appropriate time and 
manner to Committee members. Also, 
interested groups or individuals may 
have the opportunity to participate with 
working groups of the Committee. FRA 
believes that this sort of participation 
will produce meaningfiil information 
and lead to a more effective roadway 
worker safety program. Of course, FRA 



will invite comment on the proposed 
rule resulting from the Committee's 
deliberations and hold a public hearing 
to hear additional comments. 

V. Major Issues 

In its notice of intent, FRA tentatively 
identified major issues to consider in 
the negotiation and asked for comment 
on whether the issues presented were 
appropriate and if alternate or 
additional issues should be considered. 
Unfortunately, most comments 
submitted were devoted to issues of 
membership rather than rule substance. 
Listed below are subjects FRA believes 
the negotiation process should address; 

1. Devices available that would 
reduce the risk of injury to roadway 
workers; 

2. Practices and training programs 
currently in use or that may be 
instituted to reduce the risk of injury lo 
roadway workers; 

3. The extent to which environmental, 
topographical, and operational 
conditions do or should cause variations 
in any roadway worker safety program;. 

4. The type and extent of FRA 
enforcement and recordkeeping 
requirements necessary to protect 
roadway workers; and 

5. The costs associated with 
developing an effective roadway worker 
safety program. (The costs include but 
are not limited to the burden on 
railroads and local, state, and federal 
government entities.) 

FRA believes that the negotiation 
process should be open to discussion 
about these and any other relevant 
matters the Committee finds nece.s.sary 
to explore. 

VI. Procedure and Schedule 

Those who commented on the notice 
of intent generally did not address 
Committee procedures. FRA anticipates 
that all or a substantial majority of the 
negotiation sessions will take place in 
Washington, D.C. at DOT headquarters. 
Given FRA's limited resources, travel 
outside of Washington, D.C. for the 
purpose of holding negotiation sessions 
is unlikely. However, FRA will consider 



158 



THE CONVENING PROCESS 



any recommendations made by the 
Conmiittee in this regard. 
FRA will not make any 
determinations at this time concfiriiir.^ 
the frequency or timing of public 
hearings, or the development of 
negotiation subcommittees. FRAs 
ability to hold public hearings will l)o 
subject to the availability of funds fi)r 
this purpose. However, FRA will 
consider any recommendations the 
Committee makes on these matters. 

Consistent with requirements of the 
Federal Advisory Committee Act, a clcnr 
ond comprehensive record of the 
Committee's deliberations should ho 
kept and circulated to Committee 
members. FRA will provide an 
administrative specialist to the 
Committee to complete these dulii;s aiul 
assi.st with drafting any additional 
documents, including the Conunittees 
report. The Committee may also chooso 
to designate additional individuals to 
draft documents. 

The objective of the negotiation, in 
FRA's view, is for the Committee to 
produce a report recommending a 
course of action for FRA to follow that 
will prevent roadway worker injuries 
and fatalities. FRA anticipates that the 
report will include a draft NPRM on 
which the Committee has reached 
consensus. This approach is consistent 
with recommendations of the 
Administrative Conference of the 
United States on regulatory negotiation. 
As stated in the notice of intent, FRA 
wiU proceed on its own if the 
Committee cannot reach consensus on a 
recommended course of action. In that 
event, FRA will make every attempt to 
include provisions that the Committee 
did reach agreement on in the agency's 
NPRM. Also, as stiated in the notice of 
intent, FRA must review the 
Committee's recommendations for 
enforceability and effectiveness. If the 
agency determines that the report 
contains recommendations wliich are 
unenforceable, contrary to existing law, 
or completely ineffective, FRA may 
abandon or amend the Committee's 
recommendations. However, wc believe 



1764 

likelihood of such a situation is remote, 
and will seek to avoid this result. 

In view of the high priority FRA has 
given this proceeding and the 
facilitation contract limitations, the 
agency is asking the advisory committee 
to complete negotiations for the NPRM 
by May 1 . 1995. FRA realizes that this 
deadline is ambitious, but we believe 
that it will encourage serious and 
efficient negotiation by all parties. 

The negotiation process will 
otherwise proceed'according to a 
schedule of specific dates that the 
Committee devises at the first meeting 
to be held on January 23-25. 1995. As 
time permits, FRA will publish notices 
of future meetings in the Federal 
Register. The first meeting is scheduled 
to begin at 9:30 a.m. in Room 3200-3204 
of the Nassif Building. DOT 
headquarters. This session will 
commence with an orientation and 
regulatory negotiation training program 
conducted by facilitators from the 
Federal Mediation and Conciliation 
Service. After the training program, the 
Committee will devise its procedures 
and calendar, and will then begin 
substantive deliberations on roadway 
worker safety. FRA has given advance 
notice of this meeting to all Committee 
members and believes that all members 
will be present for this first and 
Important meeting. 

Is.sucd this 29lh day of December. 1994 
S. Mark Lindsey, 

Acting Administrator. Federtil Railroad 

Administration. 

jFR Doc. 95-201 Filed 1^-95; 8:45 amf 

BILLING CODE 4910-06-P 



NON-DISCRIMINATION MEETING NOTICE 



159 



52 Fed. Reg. 21788 (June 9. 1987) 



DEPARTMENT OF TIIANSPORTATiON 

Office of the Secretary 

Advisory Committee for fiegulatory 
Negotiation Concerning 
Nondiscrimination on ttie Basis of 
Handicap In Air Travel; Meetings 

AGENCY: Department of Transportation. 
Office of the Secretary. 
action: Notice: Schedule of Advisory 
Committee Meetings. 

summary: The Department of 

Transportation gives notice, as required 

by the Federal Advisory Committee Act 

(Pub. L 92-463], that meetings of its 

Advisory Committee on Regulatory 

Negotiation (concerning' 

nondiscrimination on the basis of 

handicap In air travel) will meet during 

1987,on the datest listefi beloy/. 

DATES: Meetings of the Advisoqr 

Committee are scheduled on the 

following dales: 

Wednesday. Jime 10 

Tuesday. |une 16 

Tuesday. )uae 23 

Thursday. July 9 

Wednesday. July 22 

Thursday. July 23 

Monday. August 10 

Tuesday. August 11 

Thursday. August 20 

Wednesday. September 2 

Thursday. September 3 

Wednesday. Septembers 

Thursday. September 10 

Wednesday. September 23 

Monday. October 5 

Tuesday. October 6 

Thursday.^ October 15 

Friday. October 16 

Monday. October 26 

Monday. November 2 

Tuesday. Novembers 

Thursday^ November 5 

AOOftESSES: The June 10 meeting will be 

held in Room 3200 of the Department of 

Transportation's headquarters building. 

located at 400 7th Street. SW.. 

Washington DC. The June 16 meeting 



will be held at the Endependence Center 
of Northern Virginia. 2111 Wilson 
Blved.. Suite 400. Arlington. Virginia. 
The June 23 meeting will be in room 8236 
of the DOT building. Locations of 
subsequent meetings will be announced 
in a later notice. It is expected that rtuist 
of these meetings will take place at the 
DOT headquarters building. 

FOR FURTHER INFORMATION CONTACT: 
Robert C. Ashby, Deputy Assistant 
General Counsel for Regulation and 
Eftforcement. 400 7th Street. SW.- Room 
10424. Washington. DC. 20590. 202-366- 
9306 (voice): 202-755-7687 (TDD). 
SUPPLEMENTARY INFORMATION: The 

listed meetings of the advisory 
committee are for the purpose of 
negotiating the contents of a proposed 
regulation that be issued by the 
Department of Transportation to 
implement the Air Carrier Access Act of 
1986. w^hich prohibits discrimination on 
the basis of handicap in air travel. The 
meetings are open to the public. The 
Department requests that individuals 
planning to attend any of the meetings 
who will need the services of a sign 
language interpreter so inform the 
Department at least two days in 
advance of the meeting date. Interested 
persons may contact Mr. Ashby for this 
purpose. 

Issued this day of June. 1987. at 
Washington. DC 
Rosalind A. Kniapp. 
Deputy General Counsel 
Gloria Jean Gladden, 
AUernale Certifying Officer. 
[FR Doc. 97-13206 Filed &-&-67: 3:28 pm] 
BILUNC COOE M1»-«>-M 



160 



THE CONVENING PROCESS 



57 Fed. Reg. 61860 (Dec. 29, 1992) 



Department of Labor 

Occupational Safety and Health 
Administration 

29 CFR Part 1926 
[Docket No. S-775] 
RINNo. 1218-AA65 

Safety Standards for Steel and Other 
Metal and Non-Metal Erection 

agb^CT: Occupational Safety and Health 
Admimstration (OSHA). U.S. 
Department of Labor. 
ACTION: Announcement of Intent To 
Establish Negotiated Kulemaking 
Committoe; Request for Representation. 

summary: The Occupational Safety and 
Health Admimstration is announcing its 
intent to establish a Steel Erection 
Negotiated Rulemaking Advisory 
Committee under the Negotiated 
Rulemaking Act (NRA) and the Federal 
Advisory Committee Act (FACA). The 
Committee will negotiate issue;* 
associated with the development of a 
proposed revision of the existing safety 
provisions in its construction standards 
for steel erection (29 CFR part 1926. 
subpart R). The Committee will include 
representatives of identified parlies wtto 
would be significantly affected by the 
firtal rule. OSHA solicits interested 
parties to nominate representatives for 
membership for representation on the 
Committee. 

DATES: OSHA must receive vmtten 
commetrts and requests for membership 
or representation by March 29, 1993. 
ADDRESSES: All written comments 
should be sent, in quadruplicate, to the 
following address: Docket Office, DockeJ 
S-775, Room N-2625, 200 Constitution 
Ave.. N.W.. "Washington, D.C., 20210; 
Telephone (2021 219-7894. 



61861 

Nominations for membership or 
representation on the Committee should 
be sent, in quadruplicate, to the Docket 
Omce, Docket S-775, U.S. Department 
of Labor, Occupational Safety and 
Health Administration, Room N-2625. 
200 Constitution Avenue, N.W., 
Washington, D.C. 20210. 
FOR FURTHER INFORMATION CONTACT: Mr. 
James F. Foster, OSHA, U.S. Department 
of Labor, Office of Information and 
Consumer Affairs, Room N-3647, 200 
Constitution Avenue, N.W., 
Washington, D.C. 20210; Telephone: 
(202)219-6151. 
SUPPLEMENTARY INFORMATION: 

I. Background 

Existing subpart R of part 1926 
(§§1926.750 through 1926.752) contains 
the safety stand^ds that apply 
specifically to steel erection activities. 
The subpart was adopted in 1971 as an 
OSHA standard under section 6(a) of the 
OSH Act, which authorized the Agency 
to adopt established Federal standards 
issued under other statutes, including 
the Construction Safety Act (40 U.S.C. 
333). Since 1971. the steel erection 
standard has been amended several 
times. For example, in 1972. OSHA 
promulgated miscellaneous 
amendments and in 1974, the Agency 
revised the temporary flooring 
requirement. 

Since 1974, OSHA has received 
several requests for clarification of 
various provisions of subpart R, 
especially regarding the fall protection 
requirements. In 1984, the Agency 
began drafting a proposed rule to update 
and clarify subpart R. On several 
occasions, in meetings with its Advisory 
Committee on Construction Safety and 
Health (ACCSH), OSHA presented draft 



OSHA INTENT NOTICE 



161 



regulatory language revising subpart R 
and sought the Committee's advice. 

On November 25. 1986, OSHA issued 
a Notice of Proposed Rulemaking 
(NPRM) for subpart M (Fall Protection) 
at 51 FR 42718. In that document the 
Agency announced that it intended the 
proposed fall protection rule to apply to 
all walking/w^orking surfaces found in 
construction, except for certain specific 
areas where other sections in the 
construction standards would continue 
to apply. With regard to steel erection 
activities, the Agency provided in 
proposed §1926.500(a)(2)(iv) that: 
"Requirements relating to fall protection 
for connectors performing steel erection 
and requirements for fall protection for 
workers on derrick and erection floors 
during steel erection are provided in 29 
CFR 1926.750—1926.752 (|s)ubpart R)." 
Also, in proposed §1926.500(a)(3)(iii) 
the Agency provided that: "Specific 
requirements for safety railings used on 
derrick and erection floors durin g steel 
erection are provided in 29 CFR 
1926.752 ((slubpart R)." 

In the preamble to (he fall protection 
rule, OSHA summari2:ed the meaning of 
these exceptions by staling that 
"additional requirements to have fall 
protection for connectors and for 
workers on derrick and erection floors 
during steel erection would remain in 
Isjubpart R— Steel Erection" (51 FR 
42720. Nov. 25, 1986). This statement 
led to confusion in the steel erection 
industry. In response, OSHA extended 
the comment period for submissions on 
the issue and stated that it "intend(ed) 
that the proposed fall protection 
standards published on November 26, 
1986. apply to all workers engaged in 
skeleton steel erection activities, except 
for connectors. ..making initial 
connections..." (52 FR 20616. June 2. 
1987). Subsequently, OSHA announced 
(53 FR 2048. 2053. January- 26. 1988) 
"that the consolidation of the fall 
protection provisions in subpart M 
jwould) not apply to steel erection and 
that the current fall protection 
requirements of part 1926 (would) 
continue to cover steel erection until (a| 
steel erection rulemaking is completed." 



OSHA continued to work on its 
subpart M rulemaking and to develop a 
draft proposed revision to subpart R. As 
part of that process, the Agency 
presented several draft proposed 
revisions of subpart R to the ACCSH and 
solicited the Committee's input. Overall. 
OSHA has received many 
recommendations from the ACCSH and 
affected employee and employer parties, 
several of whidi have requested that 
OSHA institute negotiated rulemaking 
to help develop a new subpart R 
proposal. OSHA initially denied the 
requests for negotiated rulemaking 
because it was about to issue a proposed 
revision of subpart R. However, in an 
effort to ensure that OSHA's proposal on 
subpart R would more fully address the 
concerns of the affected groups. OSHA 
asked an independent consultant to 
review the fall protection issues raised 
by the draft revisions of subpart R, 
render an independent opinion and to 
recommend a course of action. The 
consultant recommended that OSHA 
address the issue of fall protection as 
well as other potential revisions of 
subpart R by using the negotiated 
rulemaking process. 

Based on tne consultant's findings 
and the continued requests for 
negotiated rulemaking. OSHA has 
decided to use the negotiated 
rulemaking process to develop a 
proposed revision of subpart R that will 
cover fall protection for erectors as well 
as technical requirements for the 
assembly and installation of structures. 
To facilitate access to pertinent 
information, all transcripts and 
documents generated regarding subpart 
R and all relevant materials from the 
rulemaking records for the proposed 
revision to subparts L (S-205), M (S- 
206), and X (S-207) have been made 
part of the docket for this proceeding 
(S-775). 

The negotiated rulemaking effort 
described in this Notice will be 
conducted in accordance with the 
Department of Labor's recently 
approved policy on negotiated 
rulemaking. For further detail about the 
Department's negotiated rulemaking 



162 



THE CONVENING PROCESS 



policy, please consult the "Notice of 
Policy on Use of Negotiated Rulemaking 
Procedures by Agencies of the 
Department of Labor" being published 
in the Federal Register concurrently 
with this Notice. 

A. The Concept of Negotiated 
Rulemaking 

Usually, OSHA develops a proposed 
rule using staff and consultant 
resources. The concerns of affected 
parties are identified through various 
informal contacts, such as the 
circulation of a draft proposal to known 
affected parties for their informal 
comment, advance notices of proposed 
rulemaking (ANPR) published in the 
Federal Register or through formal 
consultation writh an advisory 
committee such as the ACCSH. Afler a 
notice of proposed rulemaking is 
published for comment, affected parties, 
including the Agency, submit arguments 
and data supporting their positions. All 
communications from affected parties 
are directed to the agency and its docket 
office. In general, there is not much 
communication during the rulemaking 
among parties representing different 
interests, except during cross- 
examination conducted at a rulemaking 
hearing. 

Many times, effective regulations have 
resulted from such a process. However, 
as Congress noted in the Negotiated 
Rulemaking Act (5 U.S.C. 561). current 
rulemaking procedures "may discourage 
the affected parties from meeting and 
communicating with each other, and 
may cause parties with different 
interests to assume conflicting and 
antagonistic positions..." (Sec 2 (2)). 
Congress also stated that "(a)dversahal 
rulemaking deprives the affected parties 
and the public of the benefits of face-to- 
face negotiations and cooperation in 
developing and reaching agreement on a 
rule. It also deprives them of the 
benefits of shared information, 
knowledge, exf>ertise. and technical 



61862 

abilities possessed by the affected 
parties.- (Sec, 2 (3}). 

Using negotiated riilemaking to 
actually develop a proposed rule is 
fundamentaDy different Negotiated 
rulemaking is a process by which a 
proposed rule i& develo|>ed by a 
committee composed of representatives 
of all the interests that will be 
significantly affected by the rule. 
Decisions are made by consensus, 
which generally requires concurrence 
among all of the interests represented. 

The process is started by the Agency's 
careful identification of all interests 
potentially affected by the rulemaking 
under consideration. To help in this 
identification process, the Agency 
publishes a document in the Federal 
Register suc^ as this one, which 
identiOes a preliminary list of interests 
and requests public comment on that 
list. 

Following receipt of the comments, 
the Agency establishes an advisory 
committee representing these various 
interests to negotiate a consensus od the 
provisions of a proposed rule. 
Representation on the committee may 
be direct, that is, each member 
represents a specific interest, or may be 
indirect, through <x>alitions of parties 
formed -to represent a specific sphere of 
interest. The Agency is a member of the 
committee representing the Federal 
government's own set of interests. 

The Tiegotiate<J rulemaking (reg/neg) 
advisory connnittee is chaired by a 
trained mediator who facilitates the 
negotiation process. The role of this 
mediator, also called a facilitator, is to 
apply proven consensus building 
tediniqueis lo the OSHA advisory 
committee setting. The many functions 
that he or she will perform are 
discussed below. 



OSHA INTENT NOTICE 



163 



Once a reg/neg advisory commiUee 
reaches consensus on the provisions of 
a proposed rule, *he Agency, consistent 
with its legal obligations, uses such 
consensus as the t>asis for its proposed 
rule, to be published in the Federal 
Register. Xhis provides the required 
public notice and allows for a public 
comment period. Other participants and 
other interested parties retain their 
rights to comment, participate in an 
informal hearing (if requested) and 
judicial review. OSHA anticipates. 
howe\'er, that tha pre-proposal 
consensus agreed upon by this 
Committee will arffectively narrow the 
issues in the subsequent rulemaking to 
only those whidi truly remain in 
controversy. 

B. Selecting subpart Rasa Candidate 
for Negotiated Rulemaking 

The NRA allows the Agency to 
establish a negotiated rulemaking 
committee if it is determined that the 
use of the negotiated rulemaking 
procedure is in the public interest. As 
discussed above (in the Backgroimd part 
of this document) OSHA has made sudi 
a determination. 

OSHA bases this determination, not 
only on the independent consultant's 
recommendations as mentioned above, 
but also on its own prior experience 
with the negotiated rulemaking process. 
Even before the NRA was enacted, 
OSHA conducted negotiated rulemaking 
for its complex health standards for 
Methylenedianiline (MDA). This 
committee met seven times over a 10- 
month period (24 meeting days) and 
successfully negotiated standards for 
both general industry and construction. 
The final standards were ultimately 
based on the recommended proposed 
standards, and no litigation followed the 
standards* promulgation. 

In addition, extensive discussions 
held between OSHA staff and many 
interested parlies lends further evidence 
that the elements necessary for a 
successful negotiated rulemaking on 
steel erection exist. Moreover, the 
Agency believes that most of the 
selection criteria listed in the NRA (5 



U.S.C. 563(a)) are met. Thera is a 
recognized need to revise subpart R to 
clarify fall protection requirements for 
structural erection workers and to 
update construction specifications and 
work practices. Interests which will be 
affected by a revised subpart R are 
known, are limited in number, and to a 
significant degree, are already oi^anized 
in interest-based coalitions. Parties 
representing significant interests have 
requested that OSHA begin negotiated 
rulemaking on a revised subpart R. The 
Agency believes that reaching 
consensus on revised work practices 
and speciHcations for structural erection 
is highly promising. In addition, OSHA 
expects that all persons hkely to be 
significantly affected by sudi a rule abo 
will negotiate in good faith, on the fall 
protection provisions of a proposed 
standard. The need for clarification and 
revisions of current fall protection 
provisions is acknowledged by all 
known interests. 

C. Agency Commitment 

In initiating this negotiated 
rulemaking process, OSHA is making a 
commitment on behalf of the 
Department of Labor that the agency and 
all other participants within the 
Department will provide adequate 
resources to ensure timely and 
successful completkn of the process. 
This commitment includes m^dng the 
process a priority activity for all 
representatives, components, officials, 
and personnel of the Department who 
need to be involved in the rulemaking. 
horn the time of initiation until such 
time as a final rule is issued or the 
process expressly terminated. Once the 
process has been initiated, all 
representatives, components, officials, 
and personnel of the Department shall 
be expected to act in accordance with 
this commitment. 

As provider of administrative support. 
OSHA will take steps to ensure that the 
negotiated rulemaking committee has 
the dedicated resources it requires to 
complete its work in a timely fashion. 
These include the provision or 
procurement of such support services 
as: property equipped space adequate 



164 



THE CONVENING PROCESS 



for public meetings and caucuses; 
logistical support and timely payment of 
peirticipant travel and expenses where 
necessary as provided for under the 
NRA; word processing, information 
dissemination, storage and other 
information handling services required 
by the committee; the services of a 
facilitator; and such additional 
statistical, economic, health, safety, 
legal, computing or other technical 
assistance as may be necessary. 

OSHA. to the maximum extent 
possible consistent with the legal 
obligatiorts of the agency, will use the 
consensus of the Committee as the basis 
for the rule proposed by the Agency for 
public notice and comment. The Agency 
believes that by clarifying and updating 
the existing standards, it can limit or 
reduce the number of deaths and 
injuries to employees engaged in 
structural erection who are exposed lo 
a significant risk of injury and death 
because of the outdatedness and lack of 
clarity of certain current provisions in 
subpart R. The Agency, therefore, is 
committed to publishing a consensus 
proposal that is consistent with OSHA's 
legal mandates. 

D. Negotiating Consensus 

As discussed above, the negotiated 
rulemaking process is fundamentally 
different from the usual development 
process for OSHA proposed rules. 
Negotiation allows all the parties to 
discuss possible approaches to various 
issues rather than only asking them to 
respond to details of an OSHA proposal. 
The negotiation process involves a 
mutual education of the parties by each 
other on the practical conoems about 
the impact of such approaches. Fach 
committee member participates in 
resolving the interests and concerns of 

61863 

other mem^rs, rather than leavmg n up 
to OSHA to bridge different p>oints of 
view. 

A key principle of negotiated 
rulemaking is that agreement is by 
consensus of all the interests. Thus, no 
one interest or group of interests is able 
to control or dominate the process. The 
NRA defines consensus as the 



unanimous concurrence among interests 
represented on a negotiated rulemaking 
committee, unless the committee itself 
unanimously agrees to use a different 
definition. In addition, experience has 
demonstrated that using a trained 
mediator to facilitate this process will 
assist all potential parties, including 
OSHA, to identify their real interests in 
the rule and so be able to reevaluate 
previously stated positions on issues 
involved in this rulemaking effort. 

E Some Key Issues for Negotintion 

OSHA expects the key issues to be 
addressed as part of these negotiations 
will include: 

1. Scope and application: Should the 
scope of subpart R be limited to the 
erection of steel or should it cover other 
materials as well? Should it be limited 
to the construction of single and muln- 
story buildings or apply as well to other 
types of structures such as bridges, 
metal tanks and non-power 
transmission towers? 

2. Construction specifications and 
work practices: Which construction 
specifications and/or work practices 
provide adequate protection for 
employee safety for steel erection? What 
other specifications and practices 
should be included to provide 
protection for employee safety during 
tlie erection of nop-steel structures? 
Would it be appropriate to limit the use 
of one-bolt connections? What rule is 
necessary regarding column stability? 
Should tandem ("christmas tree") 
loading and hoisting of structural 
members on the same (crane) hook be 
restricted? If so. how? What 
requirements should be set for double 
connections? 

3. Written construction safety erection 
plan: Should OSHA require a written 
safety erection plan including 
construction specifications and safety 
provisions before the actual erection of 
the structures may start? What should 
be the required comfKjnent parts of such 
a plan? 

4. Fall protection: (a) To what extent 
should the fall protection provisions of 
proposed subpart M apply to steel, non- 
steel metal and non-metal erectors? Are 



OSHA INTENT NOTICE 



165 



there circumstances under which 
employees, who perform initial 
connections of slrudural comf>onenls or 
other erection work, should be 
exempted from the requirements <:( 
subpart M? What are those 
circumstances? To what exten* do 
alternative safeguards such as trai i ng 
and sf>eciai designation:^ adequate'y 
protect connectors or other erectJc n 
workers irom fall hazards? What are the 
advantages and disadvantages for 
employee safety of using fall protection 
devices and systems such as body belt 
systems, body harness systems and 
safety net systems? 

(b) What costs are associated with 
providing fall protection to erectors? To 
what extent do employers who provide 
fall protection reduce their costs, such 
as through lower insurance and workers 
compensation premiums? How would 
productivity, for example, measured io 
terms of the time required to erect a 
completed structure, differ according u> 
the fall protection strategy chosen' 

(c) To what extent do non-steel 
structural erectors have concerns aboui 
the feasibility of compliance w<th the 
fall protection provisions of proposed 
subpart M? What fall protection 
requirements would provide 
appropriate protection for employees 
erecting non-metal structures? Should 
the same fall protection provision* 
apply to all structural erectors, 
including steel and non-metal struaurt* 
erectors? 

II. Proposed Negotiation Procedures 

The following proposed procedures 
and guidelines may be augmented as a 
result of comments received in re>ponst. 
to this document or during the 
negotiation process 

A. Committee Formatioi- 

This negotiated rulemakuig 
Committee will be formed and operated 
in full compliance with the 
requirements of the Federal Advisor)- 
Committee Ad (FACA) in a manner 
consistent with the requirements of the 
Negotiated Rulemaking Ad (NRAI 



B. Interests Involved 

The Agency intends to conduct 
negotiated rulemaking proceedings with 
particular attention to ensuring full and 
adequate representation of those 
interests that may be significantly 
affected by the proposed rule Section 
562 of the NRA defines the term 
"interest" as follows: 

(5) "interest" means, with respect lo dn 
issue or matter, multiple (>artics which havi- 
a similar point of view or which are likely 
to l>e affecled in a similar manner 

The following interests have l>een 
tentatively identified as "significantly 
affeded" by the matters that may be 
included in the proposed rule- 

"Architedural. design and 
engineering firms. 

-Developers. profMrty owners and 
general contradors; 

•Erection contradors using steei and 
eredion contractors using materials 
other than steel: 

--Fabricators of structural steel and 
non-steel metal produds: 

"Insurance organizations and public 
interest groups; 

••Labor oi^anizations representing 
employees who perform eredion work; 

-Manufadurers and suppliers of fall 
protection safety equipment; 

•-Manufacturers and suppliers of 
.structural members and pre-engineered 
romp(vients; and 

-Government entities. 

One purpose of this document is to 
determine whether a standard regulating 
erection operations associated with steel 
and/or other metal and non-metal 
material members would significantly 
affed interests that are not listed above. 
OSHA invites comment and suggestions 
on this list of "significantly affeded" 
inlerests 

•n Ihif; regard, the Department of 
Labor'recognizes that the regulatory 
actions it takes under its programs may 
at times affed various segments of 
socitjty in different ways, and that this 
may in some cases produce unique 

interests" in a proposed rule based on 
income, gender, or other such fadors. 



166 



THE CONVENING PROCESS 



Particular attention will be given by the 
Department to ensure that any unique 
interests which have been identified In 
this regard, and which it is determined 
will be signiTicantly affected by the 
proposed rule, are fully represented. 

C Mtnibf.n 

Tlie negotiating group should not 
exceed 25 members, and 15 would be 
preferable The Agency believes that 
more than 15 members would make it 
difficull to conduct effective 
negotiations. 

OSHA is aware that there are many 
more potential participants, whether 
(hey are listed here or not, than there are 
membership slots on the Committee. 
The Agency does not believe, nor does 
the NRA contemplate, that each 
potentially affected group must 
participate directly in the negotiations; 
nevertheless, each affected interest will 
hopefully be adequately represented. In 
order to have a successful negotiation, it 
is important for interested parties to 
identify and form coalitions that 
adequately represent signiHcantly 
effected interests.These coalitions, in 
order to provide adequate 
representation, must agree to support, 
both Hnancially and technically, a 

.G1864 

uiembei to the Committee whom 'hey 
will choose to represent Iheir "interest 
It is very important to recognize thai 
interested-parties who are not selected 
to membership on the Committee can 
make valuable contributions to this 
negotiated rulemaking effort In any of 
several ways: 

* The person could request to be 
placed on the Committee mailing list, 
making written comment, as 
appropriate; 

* The person could attend the 
Committee meetings, which are open to 
the public, caucus with his or her 
interest's member on the Committee, or 
even address the Committee (usually 
allowed at the end of an issue's 
discussion or the end of (he session, as 
time permits); and/or 

* The person could assist in the work 
of a workgroup which might be 



established by the Committee. 

Informal workgroups are usually 
established by an advisory committee (o 
assist the Committee in "staffing" 
various technical matters e.g., 
researching or preparing summa^ds of 
(he technical literature or comments on 
particular matters such as econoitiic 
issues before the Committee so as \o 
facilitate Committee deliberations. They 
might also assist in estimating costs and 
drafting regulatory text on issues 
associated with the analysis of the 
affordability and benefits addressed, 
and formulating drafts of the various 
provisions and their justifications 
previously developed by the committee. 
Given their staffing function, 
workgroups usually consist of 
participants who have expertise or 
particular interest in the technical 
matter(s) being studied. 

Because it recognizes the importance 
of (his staffing work for the Committee. 
OSHA will provide appropriate 
te<:hnical expertise for such workgroups. 

Requests for appointment to 
membership on the Committee are 
solicited. Members can be individuals 
or organizations. If the effort is to be 
fruitful, participants should be able to 
fully and adequately represent the 
viewpoints of their respectix'e interests. 
Those who wish to be appointed as 
members of the Committee should 
submit a request (o OSHA. in 
accordance with the Public 
Participation part of (his document. 

The following list includes those who 
have been tentatively identified by 
OSHA as being either a potential 
member of the Committee, or a potential 
member of a coalition that would in 
turn nominate a candidate to represent 
one of the significantly affected interests 
listed above: 

Architectural, design, and engineering 
firms. 

-Representatives of architects/ 
engineers, civil, mechanical, and 
structural design engineering firms; 
including engineering schools and 
universities; 

"American Institu.e oi Architects 
(AIA); 



OSHA INTENT NOTICE 



167 



"American Society of CiviJ Engineers 
(ASCE); and 

—American Society of Safety 
Engineers (ASSE). 
Developers, property owners, and 
general contractors: 

-Representatives of builders, 
developer-owners, and general 
contractors for conslruclion projects of 
building structures; bridge structures of 
railroads, highways, rivers and 
waterways; power and chemical plants; 
oil companies; and general managers 
who hire erector contractors and sub- 
contractors to do structural erection 
work. 
Builders and contractors associations: 

-Associated General Contractors 
lAGC); 

-Associated Builders and Contractors 
(ABC); and 

-National Constructors Association 
(NCA). 

Erection contractors using steel and 
erection contractors using metnis other 
than steel: 

•-Representatives of erectors of steel 
and non-steel metal-framed structures; 
aluminum, stainless steel, and glass 
curtain-wall cladding contractors; 
contractor-erectors of railroad, highway, 
river and waterway bridge structures; 

--National Erectors Association (NEA); 
and 

--Representatives of the structural, 
ornamental, rigging and reinforcing steel 
industry. 

Erection contractors using non-metal 
erection members: 

-Representatives of erectors of precast 
concrete; 

--Representatives of the Precast/ 
Prestressed Concrete Institute (PCI), 

-Representatives of erectors of 
lumber, wood, plastic and other non- 
metal structures; 

-National Association of Home 
Builders (NAHB). 
Tower project owners, general 
contractors and erectors: 

-Edison Electric Institute (EEI); and 
"Electronic transmission tower 
erectors and other tower erector 
contractors. 

Fabricators of structural steel and non- 
steel metal products: 
"Representatives of fabricators of 



structural steel, non-sieel metal 
products; 

"American Iron and Steel Institute 
(AISI); 

-American Institute of Steel 
Construction (AISC); and 

-Southern Association of Steel 
Fabricators (SASF). 
Insurance organizations and public 
interest groups: 

-Representatives of insurance and 
public interest groups. 
Labor organizations representing 
employees who perform erection work: 

-International Association of Bridge. 
Structural and Ornamental Iron Workers 
Union; 

-United Brotherhood of Carpenters 
and Joiners of America; 

-International Brotherhood of 
Electrical Workers; and 

-Laborers International Union o.f 
North America. 

Manufacturers and suppliers of safety 
equipment: 

"Representatives of the manufacturers 
and suppliers of fall protection 
equipment; and 

-Industrial Safety Equipment 
Association (ISEA). 
Manufacturers and suppliers of 
structural members and pre-engineered 
assemblies components: 

-Representatives of manufacturers 
and suppliers of structural steel 
products; 

-Representatives of manufacturers 
and suppliers of aluminum and non- 
ferrous structural metals; 

"Representatives of manufacturers 
and suppliers of timber and wood 
structural products, plastic and plastic 
reinforced structural products; 
manufacturers of precast concrete 
structural products; and 

"Steel Joist Institute (SJI). 
Government entities: 

"U.S. Department of Labor (DOL)/ 
Occupational Safety and Health 
Administration (OSHA); 

"Occupational Safety and Health 
State Plan Association. 

"National Institute for Occupational 
Safety and Health (NIOSH); 

"National Aeronautics and Space 
Administration (NASA); 



168 



THE CONVENING PROCESS 



"DepartmenI of the Army, U.S. Army 
Corps of Engineers; 

--Department of Energy (DOE) and 
Western Area Power Administralion 
(WAPA). and 

--Department of Transportation 
(DOT), including the Federal Railroad 
Administration (FRA), US Coast Guard 
(USCG) and the Federal Highway 
Administration (FHVVA). 

This list of potential parties is not 
presented as a complete or exclusive list 
from which committee members will be 
selected, nor does inclusion on the list 
of potential parties mean that a party on 
the list has agreed or has.beofi^elecled 

61865 

to participate as a member of the 
committee or as a member of a coalition. 
The list merely Indicates parties that 
OSHA has tentatively identified as 
representing signiflcantly affected 
interests in the outcome of the subpart 
R negotiated rulemaking process, and 
suggests possible coalitions for 
interested parties to consider. This 
document gives notice of this process to 
other potential participants and affords 
them an opportimity to request 
representation in the negotiations. The 
procedure for requesting such 
representation is set out under the 
Public Participation part of this 
document, below. In addition, 
comments and suggestions on this 
tentative list are invited. 

D. Good Faith Negotiation 

Committee members should be 
willing to negotiate in good faith and 
have the authority to do so. The first 
step is to ensure that each member has 
good communications with his or her 
constituencies. An intra-jnterest 
network of communication should hm 
established to bring information frod) 
the support organization to the membct 
at the table, and to take information 
from the table back to the support 
organization. Second, each organization 
or coalition should, therefore, designate 
OS its ref>resentative'an official with 
credibility and authority to insure that 
needed information is provided and 
decisions are made in a timely fashion. 



Negotiated rulemaking efforts can 
require a very signi6cant contribution of 
time by the appointed members that 
must be sustained for up to a year. Other 
qualities that can be very helpful are 
negotiating experience and skills, and 
sufficient technical knowledge to 
participate in substantive negotiations. 
Certain considerations are central to 
negotiating in good faith. One is the 
willingness to bring all issues to the 
table in an attempt to reach a consensus, 
instead of keeping key issues in reserve. 
The second is a willingness to keep the 
issues at the table and not take them to 
other forums. Finally, good faith 
includes a willingness to move away 
f.'-om the type of positions usually taken 
in a more traditional rulemaking 
process, and instead explore openly 
with other parties all ideas that may 
emerge from the discussions of the 
committee. 

E. Facilitator 

This individual or organization will 
not be involved with the substantive 
development of the standard. Rather, 
the facilitator's role generally includes: 

(1) Chairing the meetings of the 
committee in an impartial manner; 

(2) Impartially assisting the members 
of the committee in conducting 
discxissions and negotlatiofis; 

(3) Performing the duties of the 
Designated Federal Official under the 
FACA; and 

(4) Acting as disclosure officer for 
committee records under the Freedom 
of Information Act (FOIA). 

F. OSHA Representative 

The OSHA representative will be a 
full and active participant in the 
consensus building negotiations. The 
representative will meet regularly with 
various senior OSHA officials, briefing 
them on the negotiations and receiving 
their suggestions and advice, in order to 
effectively represent their views 
regarding the issues before the 
Committee. OSHA's representative will 
also ensure that the entire spectrum of 
governmental interests afTected by 
revisions of subpart R, including the 



OSHA INTENT NOTICE 



169 



Office of Management and Budget and 
other Departmental offices, are kept 
informed of the negotiations and 
encouraged to make their concerns 
known in a timely fashion. (OSHA notes 
that governmental agencies such as the 
Army Corps of Engineers, which are 
involved in the construction of steel- 
framed buildings and structures, have 
other identifiable interests and expertise 
that might be represented separately on 
the Committee.) OSHA's representative 
will also communicate with the ACCSH 
on a regular basis, informing it of the 
status and content of the negotiations. 

In addition, the OSHA representative 
will present the negotiators v^th the 
accumulated record evidence gathered 
on an issue-by-issue basis for their 
consideration. (The Committee may also 
consult OSHA's representative with 
regard to the Agency's regulatory needs, 
appropriate boundaries of 
consideration, or technical information. 
Such information could include the 
areas of technological feasibility and 
economic concerns, including direct 
and indirect costs of compliance.) The 
OSHA representative, together with the 
Facilitator, will also be responsible for 
coordinating the administrative and 
committee support functions to be 
performed by OSHA's support team. 

G. Committee Notice 

After evaluating the comments on this 
announcement and the requests for 
representation, OSHA will issue a 
notice that will announce the 
establishment of the Committee and its 
membership, unless after reviewing the 
comments, it is determined that such an 
action is inappropriate. The negotiation 
process will begin once the Committee 
membership roster is published in the 
Federal Register. 

H. Tentative Schedule 

Included in the notice establ'shlng the 
Committee will be a proposed t;chedule 
of the meetings. The Grst meeting will 
focus largely on procedural matters, 
including the proposed ground rules. 
These will also include agreement on 
dates, times, and locations of future 



meetings, and identification and 
determination of how best to address 
principal Issues for resolution. 
To prevent delays that might 
postpone timely issuance of the 
proposal, after consulting the 
committee. OSHA intends to terminate 
the Committee's activities if it does not 
reach consensus on a proposed rule 
within 12 months of the first meeting. 
The process may end earlier if the 
Facilitator or the committee itself so 
recommends. 

/. Record of Meetings 

In accordance with FACA's 
requirements, the Facilitator will keep 
minutes and a record of all committee 
meetings. This record will be placed in 
the public docket No. S-775 for this 
rulemaking. Committee meetings will be 
announced in the Federal Register and 
will generally be open to the public. 

/. Agency Action 

As noted above, the Agency intends to 
use the Committee's consensus as the 
basis for the NPRM. OSHA expects to 
issue the proposed rule developed by 
the Committee, unl^s the consensus is 
inconsistent with OSHA's statutory 
authority or is not appropriately 
justified. In that event, the Agency will 
explain the reason for its decision. 

K. Committee Procedures 

Under the general guidance and 
direction of the Facilitator and subject 
to any applicable legal requirements, 
appropriate detailed procedures for 
committee meetings will be established. 
Committee members will bo presented 
with proposed ground rules and 
agendas prior to the first meeting. 

III. Public Participation 

Since this will be a negotiated 
rulemaking, there are many 
opportunities for an individual who is 
interested in the outcome of the rule to 
participate. As a first step in response to 
this notice of intent to negotiate, OSHA 
recommends that potential participants 
take a hard look at the two lists 
contained in this notice: the lists of 



170 



THE CONVENING PROCESS 



significantly affected interests and the 
lists of potential participants. After 
analyzing for completeness or over or 

61866 
under-inclusiveness, parties should 
examine the lists for the purpose of 
coalition building. Potential parties 
should try to identify others, whether on 
the lists ornpt, who share a similar 
viewpoint and who would be affected in 
a similcir way by the rule. 
Cominunication with these parties of 
similar interest should follow, and the 
organization of coalitions to support the 
interest should begin. It is only after the 
formation of these coalitions and 
extensive intra-constituency discussion 
that decisions should be made as to 
which individuals should represent the 
interest and in which capacity. As 
indicated above, an interested party may 
participate in a variety of ways such as- 
being a committee member, working 
within the coalition (promoting • 
communication, providing expert 
support in a workgroup or otherwise, 
helping to develop internal ranges of 
acceptable alternatives, etc.), attending 
committee meetings in order to caucus 
with the interest's member or address 
the Committee at the appropriate times, 
or submitting written comments pr 
materials. 

Persons who will be signiHcantly 
affected by the revision of subpart R, 
whether or not listed above in this 
document, may apply for or nominate 
another person for membership on the 
committee to represent such interests. 
Such requests should be submitted, in 
quadruplicate, to the Docket Office. 
Docket S-775. U.S. Department of 
Labor, Occupational Safety and Health 
Administration, Room N-2625, 200 
Constitution Avenue, N.W., 
Washington, D.C. 20210, no later than 
March 29. 1993. OSHA notes that the 



NRA addresses the concerns of potential 
members for whom the expenses of 
participation may not be affordable (See 
5 U.S.C. 568(c)). Each application or 
nomination shall include: 

(1) The name of the applicant or 
nominee and a description of the 
interest such person shall represent; 

(2) Evidence that the applicant or 
nominee is authorized to represent 
parties having the shared interest the 
person proposes to represent; and 

(3) A written commitment that the 
applicant or nominee shall actively 
participate in good faith in the 
development of the rule under 
consideration. 

All other written comments, 
including comments on the 
appropriateness of using negotiated . 
rulemaking to develop a proposed rule 
to revise the existing safety provisions 
in 29 CFR part 1926 subpart R, should 
be directed to Docket No. S-775, and 
sent in quadruplicate to the following 
address: OSHA Docket Office. U.S. 
Department of Labor, Room N-262S. 
200 Constitution Ave., N.W., 
Washington, D.C. 20210; Telephone 
(202) 219-7894. 

IV. Authority 

This document was prepared under 
the direction of Dorothy L. Strunk, 
Acting Assistant Secretary of Labor for 
Occupational Safety and Health, U.S. 
Department of Labor, 200 Constitution 
Avenue. NW., Washington. D.C. 20210, 
pursuant to section 3 of the Negotiated 
Rulemaking Act of 1990. 104 Stat; 4969, 
Title 5U.S.C 561 et seq. 

Signed at Washington, D.C, this 21st day 
of December. 1992. 
Dorothy L. Strunk, 
Acting Assistant Secretary of Labor. 
|FR Doc. 92-31414 Filed 12-28-92; 8:45 am] 
BILUMC COOC 491»-2«-0 



OSHA ESTABLISHMENT NOTICE 



171 



59 Fed. Reg. 24389 (May 11, 1994) 



DEPARTMENT OF LABOR 

Occupational Safety and Health 
Administration 

29 CFR Part 1926 
[Docket No. S-7751 
RIN No. 1218-AA65 

Safety Standards for Steel Erection 

AGENCY: Occupational Safety and Health 
Administration (OSHA). U.S. 
Department of Labor. 
action: Notice of establishment of 
Negotiated Rulemaking Committee. 

SUMMARY: The Occupational Safety and 
Health Administration (OSHA) is 
announcing its decision to establish a 
Steel Erection Negotiated Rulemaking 
Advisory Committee under the 
Negotiated Rulemaking Act (NRA) and 
the Federal Advisory Committee Act 
(FACA). 

DATES: The Charter will be filed on May 
27, 1994. 

ADDRESSES: Any written comments in 
response to this notice should be sent, 
in quadruplicate, to the following 
address: Docket Office, Docket S-775, 
room N-2625, 200 Constitution Ave., 
NW., Washington, DC 20210; Telephone 
(202) 219-7894. 

FOR FURTHER INFORMATION CONTACT: Mr. 
James F, Foster, OSHA, U.S. Department 
of Labor, Office of Information and 
Consumer Affairs, room N-3647, 200 
Constitution Avenue, NW., Washington, 
DC 20210; Telephone: (202) 219-8151. 
SUPPLEMENTARY INFORMATION: In 
accordance with the Federal Advisory 
Conunittee Act (Title 5 U.S.C App. I), 
section 3 of the Negotiated Rulemaking 
Act of 1990, Title 5 U.S.C. 561 et seq. 
and after consultation with the General 
Services Administration (GSA), the 
Secretary of Labor has determined that 
the establishment of the Steel Erection 
Negotiated Rulemaking Advisory 
Committee is in the public interest in 



connection with the performance of 
duties imjposed on the Department by 
the Occupational Safety and Health Act 
(29 U.S.C. 651 efsbg). 

The Committee will function as an 
integral part of the Department's 
rulemaking on revising safety standards 
for steel erection. It will attempt, via 
face-to-face negotiations, to reach 
consensus on the coverage and the 
substance of these rules, which can be 
used as the basis of a Notice of Proposed 
Rulemaking. The Committee is 
responsible for identifying the key 
issues, gauging their importance, 
analyzing the information necessary to 
resolve the issues, arriving at a 
consensus, and submitting to the 
Secretary of Labor the proposed 
regulatory text and supporting rationale 
and documentation for an occupational 
safety standard governing worker safety 
during steel erection. 

Meetings shall be held, as necessary, 
at the discretion of the Chairperson, 
however, no fewer than six meetings 
shall be held. The Committee will 
terminate two years from the date of this 
Charter or until the promulgation of the 
final standard, whichever is later. 

The Committee is composed of no 
more than 25 members including a 
facilitator, appointed by the Secretary of 
Labor, unless the Secretary of Labor 
determines that a greater number of 
members is necessary for the 
functioning of the Committee or to 
achieve balanced membership. Members 
may represent the following interests in 
appropriate balance: Architectural, 
design, and engineering firms; 
developers, property owners and 
general contractors; erection contractors 
using steel; fabricators of structural steel 
products; insurance organizations and 
public interest groups; labor 
organizations representing employees 
who perform erection work; 
manufacturers and suppliers of fall 



172 



THE CONVENING PROCESS 



protection safety equipment; 
manufacturers and suppliers of 
structural members and pre-engineered 
components; and government entities. 

The Committee will report to the 
Assistant Secretary for Occupational 
Safety and Health. It will function solely 
as an advisory body and in compliance 
with the provisions of the FACA and the 
NRA. Its Charter will be filed under the 
FACA fifteen (15) days from the date of 
this publication. 

Interested persons are invited to 
submit comments regarding the 
establishment of the Steel Erection 



Negotiated Rulemaking Advisory 
Committee. Any written comments In 
response to this notice should be sent, 
in quadruplicate, to the following 
address: Docket Office, Docket S-775, 
room N-2625, 200 Constitution Ave., 
NW., Washington, DC 20210; Telephone 
(202) 219-7894. 

Signed at Washington, DC, this 5th day of 
May 1994. 
Robert B. Reich, 
Secretary of Labor. 

[FR Doc. 94-11391 Filed 5-10-94; 8:45 am| 
BILUNQ CODE 4510-«e-P 



OSHA APPOINTMENT NOTICE 



173 



59 Fed. Reg. 25848 (May 18, 1994) 



DEPARTMENT OF LABOR 

Occupatlona) Safety and Health 
Administration 

29 CFR Part 1926 
[Docket No. S-7751 
RiN No. 1218-AA65 

Safety Standards for Steel Erection 

AGENCY: Occupational Safety and Health 
Administration (OSHA). U.S. 
Department of Labor. 
ACTION: Notice of public meeting; 
Appointment of members to advisory 
committee; and organizational meeting 
of advisory committee. 

SUMMARY: The Occupational Safety and 
Health Administration (OSHA) is 
announcing that a meeting of all parties 
interested in the Steel Erection 
Negotiated Rulemaking Advisory 
Committee (SENRAQ will be held to 
promote an understanding of the 
negotiated rulemaking process and to 
announce the selection of the Advisory 
Committee. 

In addition, immediately following 
the Informational meeting, an 
organizational meeting of SENRAC will 
lake place. Members will be sworn in 
and the committee wiB be charged with 
its duties and will address certain 
procedural matters. These meetings will 
be open to the public, 
DATES: The pubUc meeting will be held 
on Jime 15, 16 and 17, 1994. The 
informational meeting will begin at 10 
a.m. on June 15, and me organizational 
meeting of the Committee will begin at 
1 p.m. on Jime 16, 1994. 
ADDRESSES: The public meeting will be 
held in the Waterford Room on June 15 
and 16 and the Haverford Room on June 
17 of the Hyatt Regency Hotel in 
Bethesda, Maryland; Telephone (301) 
657-1234. 

Any written comments In response to 
this notice should be sent, in 
quadruplicate, to the following address: 
Docket Office, Docket S-775, room N- 
2625. 200 Constitution Ave.. NW., 



Washington, EX: 20210; Telephone (202) 
219-7894. 

FOR FURTHER INFORMATION CONTACT: Mr. 
James F. Foster, OSHA, U.S. Department 
of Labor, Office of Information and 
Consumer Affairs, room N-3647, 200 
Constitution Avenue, NW., Washington, 
DC 20210; Telephone: (202) 219-«151, 

SUPPLEMENTARY INFORMATION: 

L Background 

Existing subpart R of part 1926 
(§§ 1926.750 through 1926.752) contains 
safety standards that apply specifically 
to steel erection activities. These 
provisions Include construction 
specifications, work practices and 
requirements related to fall protection. 

Since 1974, OSHA has received 
requests for cl£irificalion of various 
provisions of subpart R, especially 
provisions regarding the fall protection 
requirements, because other subparts of 
the construction safety and health 
standards address fall protection. In 
1984, the Agency began drafting a 
proposed rule to update and clarify 
subpart R. OSHA met with its Advisory 
Committee on Corkstruction Safety and 
Health (ACCSH), and sought the 
Committee's advice on the draft 
regulation. 

On November 25, 1986. OSHA issued 
a notice of proposed rulemaking 
(NPRM) for subpart M (the general fall 
protection standard for construction 
work) (51 FR 42718). At that time, the 
Agency stated that it intended to apply 
subpart M to certain steel erection 
activities. Subsequently, the Agency 
decided (53 FR 2052) that the revised 
subpart M would not apply when 
workers were engaged in the erection of 
steel fi'amed buildings. Instead a 
separate rulemaking on subpart R would 
be undertaken. OSHA circulated draft 
proposals of subpart R reflecting this 
decision. 

In response, several interested parties 
requested that OSHA institute 
negotiated rulemaking for subpart R, 
OSHA retained an independent 
consultant to review the fall protection 



174 



THE CONVENING PROCESS 



issues raised by the draft revisions of 
subpart R, render an independent 
opinion and to recommend a course of 
action. In 1991. the consultant 
recommended that OSHA address the 
issue of fall protection as well as other 
potential revisions of subpart R by using 
the negotiated rulemaking process. 

Based on this recommendation and 
continued requests for negotiated 
rulemaking, on December 29, 1992, 
OSHA published a Federal Register 
notice of intent to establish a negotiated 
rulemaking committee (57 FR 61860). 
The notice requested nominaUohs for 
membership on the Committee and 
comments on the appropriateness of 
using negotiated rulemaking to develop 
a steel erection proposed rule. In 
addition, the notice described the 
negotiated rulemaking process and 
identified some key issues for 
negotiation. To promote understanding 
of this process. OSHA has edited and 
republished some of these discussions 
as appendices to this notice. 

-In response to the notice of intent, 
OSHA received over 225 submissions 
from Uie identified interests, including 
over 60 nominations for membership on 
the Committee and several sets of 
comments. After an evaluation of the 
submissions, it was apparent that an. 
overwhelming majority of commenters 
supported this action and OSHA has 
decided to go forward with the 
negotiated rulemaking process. The 
Agency has selected the members of the 
Committee from these nominations. 

The Agency has hired Philip J. Harter, 
Esq. as Facilitator for the negotiated 
rulemaking Conunittee, The primary 
functions of the Facilitator will be to 
chair the meetings of the Committee in 
an impartial manner and assist the 
members of the Committee in 
conducting discussions and 
negotiations. 

OSHA has decided that a meeting of 
all interested parties should be held to 
promote a better understanding of the 
negotiated rulemaking process and to 
initiate the structuring of the 
negotiations. The meeting will be 
chaired by the newly appointed 
Facilitator. 



In addition, immediately following 
the public meeting, an organizational 
meeting of SENRAC will be held. 
Members will be sworn in, the 
committee will be charged with its 
duties and then will address certain 
procedural matters, including proposed 
Ground Rules. Other procedural issues 
will include agreement on dates, tin^s, 
and locations of future meetings, and 
identification and determination of how 
best to address principal issues far 
resolution. This meeting will be open to 
the public. 

II. Agenda for the Public Meeting 

Following registration and assembly, 
the Facilitator will o^er an overview of 
negotiated rulemaking (Neg/Reg). 
Interest based negotiation will be 
contrasted with the usual development 
of a proposed rule. The advantages of 
using Neg/Reg. where practical 
decisionmaking results in a rule that can 
be more stringent, but. at the same time, 

25849 

easier and less expensive to implement, 
will be discussed. Other topics 
addressed will be working with 
caucuses and the "Wedge" concept 
where the member at the table 
represents a much broader constituency 
and is expected to funnel information 
both ways. The very tmp>ortant role of 
workgroups, composed of both members 
and other interested pwuties, working 
out technical problems and performing 
drafting and analysis tasks will be 
discussed. It should be noted that 
workgroups, while reflecting the 
deliberations of the Committee, do not 
make policy decisions. The Facilitator 
will announce the establishment of an 
electronic bulletin board for this Neg/ 
Reg. The purpose of the electronic 
bulletin board is to decrease the amount 
of paper and paperwork while 
ihcreeising commimication between and 
among members and the public. During 
the meeting the Facilitator may provide 
opportunities for questions and caucus 
meetings. 

The Facilitator will also announce the 
selection of the Committee. He will 
discuss: the variety of interests and the 



OSHA APPOINTMENT NOTICE 



175 



potential representatives of those 
interests; the di£Bculty in selecting the 
Committee members and the basis for 
these selections; afid the criteria used in 
assessing whether to go forward with a 
Neg/Reg and the decision to go forward 
in Steel Erection. 

The Facilitator will address the 
matters that must be resolved by the 
Committee at its first meeting, including 
the Groimd Rules. These are the 
procedural rules that the Committee 
will adopt at its first meeting. The 
Agency will distribute proposed Ground 
Rules which address: the composition of 
the Committee, the use of alternates, 
and the essential commitment of the 
members to attend the meetings and 
participate meaningfully. The Ground 
Rules emphasize the Importance of the 
members' conununication with their 
constituencies including keeping them 
abreast of the negotiations, thereby 
limiting surprises. The goal of this . 
negotiated rulemaking is a proposed 
rule and supporting dociunentation that 
all members will support The Groimd 
Rules wrill address "bai^aining" in good 
faith to reach the goaL 

The Facilitator will also identify and 
discuss the substantive issues to be 
resolved by this Committee. Here, the 
Facilitator is relying on the information 
presented to him by OSHA as well as 
the considerable input from the various 
interests daring his convening efforts. 
The time needed for the resolution of 
these issues and the order of their 
consideration is integrally related to the 
development of a tentative schedule. 
OSHA requests that all interested 
parties bring their calendars to facilitate 
the development of a tentative schedule 
of committee meetings, site visits and 
workgroup meetings. 

Interactive training sessions, under 
the direction of the Facilitator, will 
constitute the final portion of this 
public meeting. Topics for these training 
sessions will include the following: a 
discussion on interest based 
negotiations; a session illustratinj bow 
to participate in a Neg/Reg; and an 
explanation of how the electronic 
bulletin board system will aid the 
negotiation process. Other training 



activities may be added at the time of 
the meeting. 

III. Conunittee Membership 

Appointees to the Committee include 
representatives from labor, industry, 
public interests and government 
agencies. The appointees also represent 
groups interested in, or affected by, the 
outcome of the rulemaking. SENRAC is 
comprised of 20 members listed here 
alphabetically: 

Richard Adams, Safety & Occupational 
Health Office, Department of the 
Army, U.S. Army Engineers 
District, Sacramento, Corps of 
Engineers, Room 960, 1325 "J" 
Street, Sacramento. CA 95814-2922 
William Brown, Ben Hur Construction 
Company, 13517 Lakefit)nt Drive, 
St. Louis, MO 63045-1416 
Byron R. Chadvtrick. Regional 
Administrator, Region VII. 
Occupational Safety and Health 
Administration, Federal Building, 
1961 Stout Street, Denver, CO 
80294 
James E. Cole, International Association 
of Bridge. Structural & Ornamental 
Iron Workers. Suite 400. 1750 New 
York Avenue. NW, Washington, DC 
20006 
Stephen D. Cooper. International 

Association of Bridge, Structural & 
Ornamental Iron Woricers, Suite 
400, 1750 New York Avenue, NW 
Washington, DC 20006 
Phillip H. Cordova. El Paso Crane & 
Rigging Inc. 1200 Kastrin, El Paso, 
TX 79907 
Perry A. Day. Int'l Brotherhood of 
Boilermakers, Iron Ship, Builders, 
Blacksmiths, Forgers & Helpers, 
Suite 360, 2722 Merrilee Drive. 
Fairfax, VA. 22031 
James R. Hinsoh, J. Hinson Network, 
Inc.. 1933 Davis St.. Suite 268, San 
Leandro.CA 94577 
Richard King, Black & Veatch. P.O. BOX 

8405. Kansas City. MO 64114 
Jim E. Lapping, Building and 

Construction Trades, Dept. AFL- 
aO, 815 16th Street. NW., 
Washington, DC 20006 



176 



THE CONVENING PROCESS 



John R. Molovich, United Sleelworkers 
of America, Five Gateway Center. 
Pittsburgh. PA 15222 

Carol Murkland, Gilbane Building 
Company, Suite 500, 7901 Sandy 
Spring Road, Laurel, MD 20707 

John J. Murphy, Williams Enterprises of 
Georgia, Inc., P.O. Box 756, Smyrna, 
GA 30081 

Steven L. Rank, Holton & Associates. 
Ltd.. Suite 102, 1850 Craigshire 
Plaza, St Louis. MO 63146 

Ray Rooth. Division of Occupational 
Safety and Health. California 
Department of Industrial Relations. 
Room 5202. P.O. Box 420603, San 
Francisco. CA 94142 

Al Simmons, Council of Greater New 
York and Vicinity. International 
Association of Bridge. Structural & 
Ornamental Iron Workers, 10 Ralph 
Avenue, Lake Grove, NY 11755 

William J. Smith, International Union of 
Operating Engineers, 1125 
Seventeenth Street, NW., 
Washington, DC 20036 

Ronald Stanevlch. National Institute of 
Occupational Safety and Health, 
Division of Safety Research. 944 
Chestnut Ridge Road. Morgantown, 
WV 26505 

C. Rockwell Turner. L.P.R. 

Construction. 1171 Des Moiners 
Avenue, Loveland, CO 80537 

Eric Waterman, National Erectors 
Association. Suite 202. 1501 Lee 
Highway. Arlington. VA 22209 

rv. Agenda for the Or^ganizational 
Meeting of SENRAC 

The meeting will be called to order. 
The Secretary of Labor, or his designee, 
vdll then swear in the members of the 
Committee and charge the Committee 
with Its duties and goals. The FaciUtator 
will assume the Chair and the 
procedural issues will be addressed by 
the Committee. These will include the 
adoption of the Ground Rules which are 
the procedural rules that the Committee 
will follow. The substantive matters 
must be considered in the development 
of a tentative schedule of committee 



meetings, site visits and workgroup 
meetings. The Committee vriU have to 
identify and discuss these matters to be 
resolved and determine the proper 
sequence of consideration as well as the 
location of the future meetings. OSHA 
will have provided proposed Ground 
Rules, issues, agendas (sequence of 
consideration), and meeting locations to 
committee members prior to this 
meeting. 

25850 

V. Appendices 

Included in this notice are three 
appendices. The text of the appendices 
are adopted from OSHA's notice of 
intent to establish a negotiated 
rulemaking committee (57 FR 61860), 
and are organized in the following 
maimer: Appendix 1 — the elemental 
theory of negotiated rulemaking; 
Appendix 11 — the proposed negotiation 
procedures, or how the theory would be 
applied, in practice, to this particular 
Neg/Reg; and. Appendix III — the key 
issues that OSHA expects to be the 
subject for resolution in this negotiated 
rulemaking. Issue I is narrowed from the 
earlier notice to reflect the Agency's 
decision to limit the scope of subpart R 
to steel erectipn and not to include the 
erection of precast concrete or wood 
structures. 

VI. Public Participation 

All interested parties are invited to 
attend this pubUc meeting at the time 
and place indicated above. No advanced 
registration is required. Seating will be 
available to the public on a first-come, 
first-served basis. Individuals with 
disabilities wishing to attend should 
contact the Facilitator to obtain 
appropriate accommodations no later 
than June 7. 1994. The opening public 
meeting is expected to last a day and a 
half; and SENRAC will be in session for 
an additional day and a half. 

In addition, members of the general 
public may request an opportunity to 
make oral presentations to the 
Committee. The Facilitator of the 
Committee has the authority to decide 



OSHA APPOINTMENT NOTICE 



177 



to what extent oral presentations by 
members of the public may be pennitted 
at the meeting. Oral presentations will 
be limited to statements of fact and 
views, and shall not include any 
questioning of the committee members 
or other participants unless these 
questions have been specifically 
approved by the Facilitator. 

Part 19.12 of Title 29 of the Code of 
Federal Regulations will apply 
generally. The reporting requirements of 
§ 1912.33 have been changed pursuant 
to § 1912.42 to help meet the special 
needs of this Committee. Specifically, 
§ 1912.33 requires that verbatim 
transcripts be kept of all advisory 
committee meetings. Producing a 
coherent transcript requires a certain 
degree of formality. The Assistant 
Secretary therefore has determined 
pursuant to § 1912.42 that such 
formality might interfere with the free 
exchange of information and ideas 
during the negotiations, and that the 
OSH Act would be better served by 
simply requiring detailed minutes of the 
proceedings without a formal transcript. 

Minutes of the meetings and materials 
prepared for the Committee vail be 
available for public inspection at the 
OSHA Docket Office, N-2625, 200 
Constitution Ave., NW., Washington, 
DC 20210; Telephone (202) 219-7894. 

The Facilitator, Philip J. Harter, can 
be reached at Suite 404, 2301 M Street, 
NW., Washington, DC 20037; telephone 
(202) 887-1033, FAX (202) 833-1036. 

Any written comments should be 
directed to Docket No. S-775, and sent 
in quadruplicate to the following 
address: OSHA Docket Office, U.S. 
Department of Labor, room N-2625, 200 
Constitution Ave., NW., Washington, 
DC 20210; Telephone (202) 219-7894. 

VII. Authority 

This document was prepared under 
the direction of Joseph A. Dear, 
Assistant Secretary of Labor for 
Occupational Safety and HeaUh, U.S. 
Department of Labor, 200 Constitution 
Avenue, N.W., Washington, D.C. 20210, 
pursuant to section 3 of the Negotiated 
Rulemaking Act of 1990, 104 Stat. 4969. 



Title 5 U.S.'C. 561 et seq.; and Section 
7(b) of the Occupational Safety and 
Health Act of 1970. 84 Stat. 1597, Title 
29 U.S.C. 656. 

Signed at Washington. DC. this 12th day of 
May. 1994. 
Joseph A. Dear, 
Assistant Secretary of Labor. 

Appendix L — The Concept of Negotiated 
Rulemaking 

A. General 

Using negotiated rulemaking to actually 
develop a proposed rule Is fundamentally 
different than normal § 6(b) rulemaking. 
Negotiated rulemaking is a process by which 
a proposed rule is developed by a committee 
composed of representatives of all the 
interests that will be significantly affected by 
the rule. Decisions are made by consensus, 
which generally requires concurrence among 
all of the interests represented. 

The process is started by the Agency's 
careful identification of all interests 
potentially affected by the rulemaking under 
consideration. 

Following receipt of the comments, the 
Agency establishes an advisory committee 
representing these various interests to 
negotiate a consensus on the provisions of a 
proposed rule. Representation on the 
committee may be direct, that is, each 
member represents a specific interest, or may 
be indirect, through coalitions of parties 
formed to represent a specific sphere of 
interest. The Agency is a member of the 
committee representing the Federal 
government's own set of interests. 

The negotiated rulemaking (neg/reg) 
advisory committee is chaired by a trained 
mediator who facilitates the negotiation 
process. The role of this mediator, also called 
a facilitator, is to apply proven consensus 
building techniques to the OSHA advisory 
committee setting. The many functions that 
he will perform are discussed below. 

Once a neg/reg advisory committee reaches 
consensus on the provisions of a proposed 
rule, the Agency, consistent with its legal 
obligations, uses such consensus as the basis 
for its proposed rule, to be published in the 
Federal Register. This provides the required 
public notice and allows for a public 
comment period. Other participants and 
other interested parties retain their rights to 
comment, participate in an informal hearing 
(if requested) and judicial review. OSHA 
anticipates, however, that the pre-proposal 
consensus agreed upon by this Committee 



178 



THE CONVENING PROCESS 



will effectively Darrow the issues in the 
subsequent rulemaking to only those which 
truly remain in controversy. 

B. Agency Commitment 

In initiating this negotiated rulemaking 
process, OSHA is making a commitment on 
behalf of the Department of Labor that the 
agency and all other participants within the 
Department will provide adequate resources 
to ensure timely and successful completion 
of the process. This commitment includes 
making the process a priority activity for all 
representatives, components, officials, and 
personnel of the Department whojiaed to be 
involved in the rulemaking, from tYe time of 
initiation until such time as a final -ule is 
issued or the process expressly terminated. 
Once the process has been initiated, all 
representatives, components, officials, and 
personnel of the Department shall be 
expected to act in accordance with :his 
commitment. 

As provider of administrative support, 
OSHA will take steps to ensure that the 
negotiated rulemaking committee has the 
dedicated resources it requires to complete 
its work in a timely fashion. These include 
the provision or procurement of such support 
services as: properly equipped space 
adequate for public meetings and caucuses; 
logistical support as necessary; word 
processing, information dissemination, 
storage and other information handling 
services required by the committee; the 
services of a facilitator; and such additional 
statistical, economic, health, safety, legal, 
computing or other technical assistance as 
may be necessary. 

OSHA, to the maximum extent possible 
consistent with the legal obligations of the 
agency, will use the consensus of the 
Committee as the basis for the rule proposed 
by the Agency for public notice and 
comment. The Agency believes that by 
clarifying and updating the existing 
standards, it can limit or reduce the number 
of deaths and injuries to employees engaged 
in structural erection who are exposed to a 
significant risk of injury and death because 
of the outdatedness and lack of clarity of 
certain current provisions in subpart R. The 
Agency, therefore, is committed to 
publishing a consensus proposal th;.t is 
consistent with OSHA's legal mandates. 

C. Negotiating Consensus 

As discussed above, the negotiated 
rulemaking process is fundamentally 



25851 

different from the usual development process 
for OSHA proposed rules. Negotiation allows 
all the parties to discuss possible approaches 
to various issues rather than only asking 
them to respond to details of an OSHA draft 
proposal. The negotiation process involves a 
mutual education of the parties by each other 
on the practical concerns about the impact of 
various approaches. Each committee member 
participates in resolving the interests and 
concerns of other members, rather than 
leaving it up to OSHA to bridge different 
points of view. 

A key principle of negotiated rulemaking is 
that agreement is by consensus of all the 
interests. Thus, no one interest or group of 
interests is able to control or dominate the 
process. The NRA defines consensus as the 
unanimous concurrence among interests 
represented on a negotiated rulemaking 
committee, unless the conrunittee itself 
unanimously agrees to use a different 
definition. In addition, using a trained 
mediator to facilitate this process will assist 
all potential parties, including OSHA, to 
identify their real interests, in the rule and so 
be able to reevaluate previously stated 
positions on issues involved in this 
rulemaking effort. 

Appendix II. — Proposed Negotiation 
Proceduj^s 

A. Committee Formation 

This negotiated rulemaking Committee will 
be formed and operated in full compliance 
with the requirements of the Federal 
Advisory Committee Act (FACA) in a manner 
consistent with the requirements of the 
Negotiated Rulemaking Act of 1990 (NRA). 

B. Interests Involved 

The Agency Intends to conduct negotiated 
rulemaking proceedings with particular 
attention to ensuring hill and adequate 
representation of those interests that may be 
significantly affected by the proposed rule. 
Section 562 of the NRA defines the term 
"interest" as follows: 

(5) "interest" means, with respect to an issue 
or matter, multiple parties which have a 
similar point of view or which are likely to 
be affected in a similar manner. 
Particular attention has been given by the 
Department to ensure that any unique 
interests which have been identified in this 
regard, and which it is determined will be 
significantly affected by the proposed rule, 
are fully represented on the Committee. 



OSHA APPOINTMENT NOTICE 



179 



C. Members 

The negotiating group should not exceed 
25 members, and fewer are preferable. OSHA 
is aware that there are many more potential 
participants, than there are membership slots 
on the Committee. The Agency does not 
believe, nor does the NRA contemplate, that 
each potentially affected group must 
participate directly in the negotiations; 
nevertheless, each affected interest should be 
adequately represented. In order to have a 
successful negotiation, it is impwrtant for 
interested parties to identify and form 
coalitions that adequately represent 
significantly affected interests. These 
coalitions, in order to pro\ide adequate 
representation, must agree to support, both 
financially fand technically, a member to the 
Committee whom they will choose to 
represent their "interest." 

It is very important to recognize that 
interested parties who are not selected to 
membership on the Committee can make 
valuable contributions to this negotiated 
rulemaking effort ih any of several ways: 

• The person could request to be placed on 
the Committee mailing list, making written 
comment, as appropriate; 

• The person could attend the Committee 
meetings, which are'open to the public, 
caucus with his or her interest's member on 
the Committee, or even address the 
Committee (usually allowed at the end of an 
issue's discussion or the end of the session, 
as time permits); and/or 

• The person could assist in the work of 
a workgroup which might be established by 
the Committee. 

Informal workgroups are usually 
established by an advisory committee to 
assist the Committee in "staffing" various 
technical matters e.g., researching or 
preparing summaries of the technical 
literature or comments on particular matters 
such as economic issues before the 
Conunittee so as to facilitate Committee 
deliberations. They might also assist in 
estimating costs and drafting regulatory text 
on issues associated with the analysis of the 
affordability and benefits addressed, and 
formulating drafts of the various provisions 
and their justifications previously developed 
by the committee. Given their staffing 
function, workgroups usually consist of 
participants who have expertise or particular 
interest in the technical matter(s) being 
studied. Because it recognizes the importance 
of this staffing work for the Committee, 
OSHA will provide appropriate technical 
expertise for such workgroups. 



D. Good Faith Negotiation 
Committee members must be willing to 

negotiate in good faith and have the authority 
to do so. The first step is to ensure that each 
member has good communications with his 
or her constituencies. An intra-interest 
network of communication should be 
established to bring information from the 
support organization to the member at the 
table, and to take information from the table 
back to the support organization. Second, 
each organization or coalition should, 
therefore, designate as its representative an 
official with credibility and authority to 
ensure that needed information is provided 
and decisions are made in a timely fashion. 
Negotiated rulemaking efforts can require a 
very significant contribution of time by the 
appointed members that must be sustained 
for up to a year. Other qualities that can be 
very helpful are negotiating experience and 
skills, and sufficient technical knowledge to 
participate in substantive negotiations. 
Certain considerations are central to 
negotiating in good faith. One is the 
willingness to bring all issues to the table in 
an attempt to reach a consensus, instead of 
keeping key issues in reserve. The second is 
a willingness to keep the issues at the table 
and not take them to other forums. Finally, 
good faith includes a willingness to move 
away from the type of positions usually taken 
in a more traditional rulemaking process, and 
instead explore openly with other parties all 
ideas that may emerge from the discussions 
of the committee. 

E. Facilitator 

This individual or organization wijl not be 
involved with the substantive development 
of the standard. Rather, the facilitator's role 
generally includes: 

(1) Chairing the meetings of the committee 
in an impartial manner; 

(2) Impartially assisting the members of the 
committee in conducting discussions and 
negotiations; 

(3) Performing the duties of the Designated 
Federal Official under the FACA; and 

(4) Acting as disclosure officer for 
committee records under the Freedom of 
Information Act (FOIA). 

F. OSHA Representative 

The OSHA representative will be a full and 
active participant in the consensus building 
negotiations. The representative will meet 
regularly with various senior OSHA officials, 
briefing them on the negotiations and 
receiving their suggestions and advice, in 



180 



THE CONVENING PROCESS 



order to effectively represent their views 
regarding the issues before the Committee. 
OSHA's representative will also ensure that 
the entire spectrum of governmental interests 
affected by revisions of subpart R. including 
the Office of Management and Budget and 
other Departmental offices, are kept informed 
of the negotiations and encouraged to make 
their concerns known in a timely fashion. 
OSHA's representative will also 
communicate with the ACCSH on a regular 
basis, informing it of the status and content 
of the negotiations. 

In addition, the OSHA representative will 
present the negotiators with the accumulated 
record evidence gathered on an issue-by- 
issue basis for their consideration. (The 
Committee may also consult OSHA's 
representative with regard to the Agency's 
regulatory needs, appropriate boundaries of 
consideration, or technical information. Such 
information could Include the areas of 
technological feasibility and economic 
concerns, including direct and indirect costs 
of compliance.) The OSHA representative, 
together with the Facilitator, will also be 
responsible for coordinating the 
administrative and conunittee support 
functions to be performed by OSHA's 
support team. 

G. Committee Notice 

OSHA is issuing this notice to announce 
the establishment of the Committee and its 
membership. The negotiation process will 
begin once the Conunittee membership roster 
is published in the Federal Register. 

H. Tentative Schedule 

The first meeting will focus largely on 
procedural matters. Including the proposed 
Ground Rules. These will also include 
agreement on dates, times, and locations of 
future meetings, and identification and 
determination of how best to address 
principal issues for resolution. 

To prevent delays that might postpone 
timely issuance of the proposal, after 
consulting the committee. OSHA intends to 
25852 

terminate the Committee's activities If it does 
not reach consensus on a proposed rule 
within 12 months of the &nt meeting. The 
process may end earlier if the Facilitator or 
the committee itself so recommends. 

/. Record of Meetings 

In accordance with FACA's requirements, 
the Facilitator will keep minutes and a record 
of ell committee meetings. This record will 
be placed in the public docket No. S-775 for 



this rulemaking. Committee meetings will be 
announced in the Fed«^ Register and will 
generally be open to the public. 

/. Agency Action 

As noted above, the Agency intends to use 
the Committee's consensus as the basis for 
the NPRM. OSHA expects to Issue the 
proposed rule developed by the Committee, 
unless the consensus is inconsistent with 
OSHA's statutory authority or is not 
appropriately iustified. In that event, the 
Agency will explain the reason for its 
decision. 

K Committee Procedures 

Under the general guidance and direction 
of the Facilitator and subject to any 
applicable legal requirements, appropriate 
detailed procedures for committee meetings 
will be established. Committee members will 
be presented with proposed Ground Rules 
and agendas prior to the first meeting. 

Appendix HI — Some Key Issues for 
Negotiation 

OSHA expects the key Issues to be 
addressed as port of these negotiations will 
include: 

1. Scope and application: Should subpart 
R cover construction specifications and work 
practices just for single and multi-story 
buildings or should it apply to all steel 
structures such as bridges, tanks and towers?' 

2. Construction specifications and work 
practices: Which construction specifications 
and/or work practices provide adequate 
protection for employee safety for steel 
erection? Would it be appjppriate to limit the 
use of one-bolt connections? What rule Is 
necessary regarding column stability? Should 
tandem ("christmas tree") loading and 
hoisting of structural members on the same 
(crane) hook be restricted? If so, how? What 
requirements should be set for double 
connections? 

3. Written construction safety erection 
plan: 

Should OSHA require a written safety 
erection plan including construction 
specifications and safety provisions before 
the actual erection of the structures may 
start? What should be the required 
component parts of such a plan? 

4. Fall protection: (a) To what extent are 
the fall protection requirements of profKtsed 
subpart M appropriate for steel erection 
work? Are there circimistances under which 
employees, who perform initial connections 
of structural components or other erection 
work, should be exempted from those 
requirements? What are those circumstances? 



OSHA APPOINTMENT NOTICE 



181 



To what extent would provisions for training 
and special designations adequately protect 
connectors or other erection workers &om 
fall hazards? 

(b) What costs are associated with 
providing fall protection to employees? To 
what extent do employers who provide fall 
protection reduce their costs, such as through 
lower insurance and workers compensation 



premiums? How would productivity, for 
example, measured in terms of the time 
required to erect a completed structure, differ 
according to the fall protection strategy 
chosen? Have injuries and fatalities been 
reduced through the Implementation of fall 
protection technologies or procedures? 

(FR Doc. 94-12089 Filed 5-17-^4; 8:45 am) 
BILUNQ CODE 4510-26-P 



59 Fed. Reg. 26153 (May 19, 1994) 



DEPARTMENT OF LABOR 

Occupational Safety and Health 
Administration 

29 CFR Part 1926 
Pocket No. S-775] 
RINNo. 1218-AA65 

Safety Standards for Steel Erection 

AGENCY: Occupational Safety and Health 
Administration (OSHA). U.S. 
Department of Labor. 
ACTION: Correction to Notice of Public 
Meeting; Appointment of Members to 
Advisory Committee; and Notice of 
Organizational Meeting of Advisory 
Committee. 

SUMMARY: The Occupational Safety and 
Health Administration (OSHA) is 
correcting its announcement of the 
meeting of all parties interested in the 
Steel Erection Negotiated Rulemaking 
Advisory Committee (SENRAC). 
selection of the Advisory Committee 
and the organizational meeting of 
SENRAC from June 15-17. 1994, to June 
14-16. 1994. 

DATES: The meetings will be held on 
June 14. 15 and 16 1994. The 
informational meeting will begin at 10 



a.m. on June 14. and the organizational 
meeting of the Committee will begin at 
1 p.m. on June 15, 1994. 
ADDRESSES: The meeUngs u-ill be held 
in the VVaterford Room on June 14 and 
15 emd the Haverford room on June 16 
of the Hyatt Regency Hotel in Bethesda, 
Maryland; Telephone (301) 657-1234. 

Any written comments in response to 
this notice should be sent, in 
quadruplicate, to the following address: 
Docket Office, Docket S-775, Room N- 
2625, 200 ConstituUon Ave.. NW.. 
Washington, EX: 20210; Telephone (202) 
219-7894. 

FOR FURTHER INFORMATION CONTACT: Mr. 
James F. Foster, OSHA, U.S. Department 
of Labor, Office of Information and 
Consumer Affairs, Room N-3647, 200 
Constitution Avenue, N.W., 
Washington, D.C. 20210; Telephone: 
(202) 219-8151. 

SUPPLEMENTARY INFORMATION: This 
document contains corrections to the 
xiotice published Wednesday, May 18, 
1994, aimoimcing the meeting of all 
parties interested In the Steel Erection 
Negotiated Rulemaking Advisory 
Committee (SENRAC). selection of the 
Advisory Committee and the 
organizational meeting of SENRAC. The 
dates of the meetings are changed from 
June 15-17, 1994, to June 14-16, 1994. 



182 THE CO^^VENING PROCESS 



The informational meeting will begin Avenue, NW., Washington, DC 20210, 

at 10 a.m. on June 14, and the pursuant to section 3 of the Negotiated 

organizational meeting of the Committee Rulemaking Act of 1990, 104 Stat. 4969, 

will begin at 1 p.m. on June 15, 1994. Title 5 U.S.C. 561 et seq.; and Section 

The meetings will be held in the 7(b) of the Occupational Safety and 

Waterford Room on June 14 and 15 and Health Act of 1970, 84 Stat. 1597, Title 

the Haverford Room on June 16 of the 29 U.S.C. 656. 

Hyatt Regency Hotel in Bethesda, signed at Washington. DC. this 17th day of 

Maryland. May 1994. 

This document was prepared under Joseph A Dear 

the direcUon of Joseph A Dear. Ass/stant Secretory o/Labor. 

s::i!;.i^oSfS;L'^ He^Js^, u.s. '^« ^ «— ^'>^^ — ^ «- -^ 

Department of Ubor. 200 Constitution ^"■"'^^ ~°^ «^<«^ 



M 



BENZENE FEASIBILITY LETTER 183 



The Institute 

for 

Environmental 

Mediation 

3318 Queen Anne Ave. N. 

SeatUe.WA 98109 

(206)285-4641 

Regional Office 

160S Monroe St. 

Madison. Wt 5371 1 

(608)257-1060 September 21, 1983 

California Office 

6301 Old Farm Rd. 

Hidden HUl3,CA 91302 

(213)090-1813 



Dr. Leonard Vance 

Director, Health Standards Programs 

Occupational Safety and Health Administration 

U.S. Department o£ Labor 

200 Constitution Avenue, N.H. 

Washington, D. C. 20210 



RB: Feasibility of Regulatory Negotiation 
for OSHA's Benzene Standard 

Dear Dc. Vance: 

He have discussed OSHA's standard governing the occupational 
exposure to benzene with representatives of the interests that 
would be substantially affected by it. Our purpose was to 
explore whether the parties believe it would be in their respec- 
tive interest to use a process similar to that recommended by 
the Administrative Conference of the Onited States (Recommenda- 
tion 82-4) to draft a standard and supporting documentation or at 
least substantially reduce the issues in contention. 

SUMMABZ 

He reached three major conclusions and a recommendation 
related to a further step that might be considered. 

1. In the abstract, the development of a benzene standard 
appears to fit particularly well the criteria that have been 
suggested as critical in determining whether regulatory negotia- 
tion is likely to be successful and indeed a recommended approach. 

2. The various interests have a range of options on a 
number of issues where solutions could potentially be found that 
meet the differing needs in a mutually acceptable fashion, inclu- 
ding meeting OSHA's legal duties. 



184 THE CONVENING PROCESS 



Or. Leonard Vance 
Page Two 
September 21, 1983 

3. Several factors, particularly the critical dimension of 
timing and a concern expressed by some as to the legitimacy of 
negotiations in the "classic" sense familiar in labor-management 
relations, militate against the appropriateness of the regulatory 
negotiation process as established in the ACUS Recommendation, at 
least until such tine as there is greater assurance of its suc- 
cess. 

4. We recommend that the affected interests set aside a 
couple of days in mid-October where they could meet jointly to 
discuss their particular needs and concerns. At that time, they 
could determine whether it is possible to design a consensus 
position or to substantially narrow areas of difference. He have 
drafted tentative ground rules for such a meeting should one be 
held. 



DISCDSSION 

1. The Administrative Conference Criteria . The benzene 
standard appears in many ways to be an ideal candidate for regu- 
latory negotiation: 

• There are a limited number of relatively well defined 
parties. 

• Individuals can be selected who will adequately represent 
the respective interests. 

• The issues are well defined and ripe for resolution. 

• The information needed to resolve important issues ap- 
pears relatively well developed. 

• The parties have had the opportunity to assess their 
respective needs, concerns, and positions. 

• OSHA'S commitment to complete work on a proposed rule in 
November and a final rule by next summer indicates that a 
decision on a standard is inevitable and provides a 
realistic deadline to complete any discussions that would 
be held. 

• A benzene standard has many components, and the parties 
have varying interests and concerns in the various compo- 
nents. 

• There appears to be genuine doubt as to many aspects of 



BENZENE FEASIBILITY LETTER 185 



DC. Leonard Vance 
Page Three 
September 21, 1983 

the standards, and no party or interest is in a position 
to dictate the result; thus, there is the sort of "coun- 
tervailing power" that is often best reconciled by direct 
discussions. 

2. Areas of Possible Discussion . We began and operated on 
the assumption that little would be served by the affected inter- 
ests coming together to search for common ground if they are so 
far apart that there would be only a small chance of concurrence. 
Our discussions led us to conclude that the parties have concerns 
and needs that are not necessarily in direct contention or oppo- 
sition to those of another interest on a surprisingly broad range 
of issues related to the standard. Indeed, there may be areas 
where the interests can assist one another to devise procedures 
and approaches that are in their mutual self-interest. A variety 
of interests expressed the view that they had concerns that would 
be difficult to address in a traditional rulemaking proceeding 
but that could be considered in direct discussions. 

Our discussions confirmed the speculation that preparing for 
what is expected to be an adversarial proceeding tends to encour- 
age parties to focus on areas of contention and, because a form 
of adjudication — even if in a rulemaking context — is expect- 
ed, to couch their positions in particularly polarizing terms. 
One person observed that they had not really understood how 
inter-related the various elements of the standard were and how 
positions on one factor could affect flexibility on another until 
considering whether and how joint discussions could be produc- 
tive. 

We were also impressed by the number of instances in which 
many of the interests have in the past participated directly in 
informal efforts to search out areas of mutual concern and find 
mutually acceptable approaches. Indeed, as one person observed, 
there may be reasonable issues to negotiate and the parties have 
the combined experience that could preclude the need for media- 
tors. But, the necessity to preserve positions that arise from 
the contentious procedures means that the parties rarely meet to 
attempt to resolve the issues or determine areas of common ap- 
proach in a rulemaking proceeding. Thus, it appears that the 
approach may well be successful but one would need to create the 
specific opportunity for it. 

3. The Limitations on the Approach . Despite the above, we 
have reluctantly concluded that we must recommend against pro- 
ceeding with an effort to negotiate a benzene standard, at least 
at this time. Several factors have led to this conclusion. 



186 THE CONVENING PROCESS 



Dc . Leonard Vance 
Page Fouc 
September 21, 1983 

Foremost is the matter of time. OSUA is committed to com- 
pleting its work on a proposed standard in November. It appears 
impossible to establish an advisory committee, have it settle 
into a working relationship, and develop a recommended proposed 
rule and supporting documentation without materially affecting 
the ability of OSHA to meet its commitment. Those with whom we 
spoke were unanimous in their opposition to any effort that could 
result in OSHA's projected timetable being delayed. 

The matter of time is further complicated by the parties' 
skepticism about whether such a process, even if attempted, could 
be successful. We view this as entirely natural and healthy, 
especially considering the customary way standards are developed 
and the novelty of the proposed approach. In conjunction with 
the time constraints under which all are operating, it would be 
unreasonable to expect any of the interests to commit the type of 
resources necessary to a full scale negotiation while a rule is 
being developed internally on a parallel track. Finally, ques- 
tions about the mechanics of how such a process would proceed 
lead to concerns over whether a party would unduly compromise its 
position in the event discussions broke down. That doubt also 
raises questions by some over the legitimacy of the process. 

He believe these concerns could be addressed with sufficient 
time — probably only several months — but we cannot under the 
circumstances recommend that OSHA go forward with the effort or 
that the interests participate in it unless there is greater 
assurance than currently exists that it would be successful and 
result in a better rule than would the traditional approach. 

4. Recommendations . We have three recommendations based on 
these findings and observations: 

First, we recommend that OSHA not proceed at this time to 
use the regulatory negotiation procedure for the development of 
its benzene standard. 

Second, we recommend that, given our conclusions from our 
extensive conversations with the interests roost affected, the 
parties consider holding a meeting where they can roeet to discuss 
the elements of what would comprise a mutually acceptable benzene 
standard and to determine the extent to which there is in fact 
the potential for developing a common approach or at least sub- 
stantially narrowing the issues in contention. In the event the 
meeting is held and is successful, the parties can then decide on 
a future course of action. 



BENZENE FEASIBILITY LETTER 187 



Dr. Leonard Vance 
Page Five 
September 21, 1983 

Third, we further recommend that if such an effort is to 
succeed the parties will need to agree beforehand on the ground 
rules and an agenda for the meeting. We have given considerable 
thought to such ground rules, based on our experience in complex 
multi-party disputes and on our discussions with those interested 
in the benzene standard in particular. We are prepared to assist 
the interests in developing them. 

We have been most appreciative of the willingness of the 
various interests and their representatives to discuss with us 
the concept and implications of regulatory negotiation, both in a 
general sense and with particular reference to the benzene stan- 
dard. We have come away with new insights into some of the 
factors that must receive further attention if the concept is to 
have broad application. We hope the parties have received some 
benefit from considering the development of standards and the 
differences that arise between the interests affected from a 
somewhat different perspective. 

Our discussions reinforced our view that the interests most 
affected by a standard are much more knowledgeable as to its 
specific effects and implications — and to possible options for 
attaining the same goals — than OSHA, or any agency, can ever 
be. (That is certainly without any disrespect for OSHA, but 
rather reflects a simple observation on the practical realities 
of regulation generally.) We believe such an effort could lead 
to not only a better standard but one that can be implemented in 
a more timely and effective manner. The conclusion of a discus- 
sion meeting, if held, may be that the benefits of the process 
are still able to be achieved for the benzene standard notwith- 
standing its difficulties. 

Respectfully submitted. 



Gerald W. Cormick 



Philip J. Barter 



188 



THE CONVENING PROCESS 



1 ' 

2 il 
3 

4 
5 

7 I 

I 

i 
12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 



JOHN K. VAN DE KA.MP, Attorney General 

of the State of California 
N. GREGORY TAYLOR, 

Assistant Attorney General 
JOHN A. SAURENMAN, 

Deputy Attorney General 
3580 Wilshire Boulevard 
Los Angeles, California 90010 
Telephone: (213) 736-2046 

Attorneys for Plaintiffs 
State of California, et al. 



UNITED STATES DISTRICT COURT 
CENTRAL DISTRICT OF CALIFORNIA 






'f?^ 






cxi 



STATE OF CALIFORNIA, et al,. 

Plaintiffs, 

V. 

DONALD P, HODEL, et al.. 

Defendants. 



CV. NO. 81-3234-p;;iI .^ 



STATUS REPORT AND 
STIPULATION CONTSlUiaG 
STATUS CONFERENCE ^-, 

en .i 

CO '^2, 



On October 1, 1985, an order was filed continuing a 
status conference in this action until February 10, 1986, at 
10:00 a. re.-' That continuance was granted in order that the 
parties would have further time to pursue the possibility of 
resolving this case through a negotiated rulemaking. At that 
time, the parties had hoped that the four-month continuance would 
allow sufficient time for the selection of a facilitator and the 
initial assessment of the situation. Houe-vex , because of ttre-| 



I 

1. Pursuant to Rule 25(d), Federall Rule of Civil Procedure, 
the caption has been altered to reflect ^that Donald p. Hodel is 
the present Secretary of the Interior. ' 



1. 



L. 



ORDER OF U.S. DISTRICT COURT 189 



need to accommodate this relatively new approach to conflict 
resolution with applicable federal procurement requirements, and 
because of the additional time needed to assure that all parties 
to the litigation agreed on the material aspects of selecting a 
facilitator and on the procedures to be followed after his or her 
selection, the process has not moved as expeditiously as 
expected. 

The parties have met both in person and by conference 
telephone call to discuss the procedures for the negotiated 
rulemaking, and they have agreed upon a "Summary Plan for 
Negotiating the Rulemaking on California Offshore Air Quality" 
(hereafter the "Summary Plan"), A copy of the Summary Plan is 
attached hereto. The Summary Plan identifies the steps involved 
in the negotiated rulemaking, and the approximate amount of time 
required for each step. The parties have agreed now to implement 
Phase I as set out in the Summary Plan. 

The Department of the Interior, with the involvement of 
the other paries to the litigation, is now in the process of 
procuring the services of a facilitator. The Department has 
developed, and has consulted with the other parties on, a compre- 
hensive Statement of Work which sets forth the responsibilities 
of the facilitator, criteria for his or her selection, the 
process by which the different phases of the negotiated rule- 
making will be conducted, and the roles the parties to the 
litigation will play throughout the entire process. (A copy of 
the Statement of Work is attached.) it presently Is anticipated 

that the contract will be awarded by April IS, 1986. Following 

2. 



190 THE CONVENING PROCESS 



I j. award of the contract, the facilitator will begin a two-month 



conflict assessment during which he or she will work with each of 
the parties to the litigation to determine whether from the 



4 ; facilitator 's perspective this dispute is suitable for resolution 



5 
6 
7 
8 
9 
10 
11 
12 
IS 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 



through this process. The facilitator then will submit a report 
to the Department of the Interior and the other parties to the 
litigation which will include a professional statement of opinion 
on the prospect for resolving the issues through negotiation. 
There will then be a three-week period during which a decision 
will be made on continuing to the actual negotiation phase of the 
process. 

The parties hereto believe that the appropriate point 
for a further report to the Court is shortly after the conflict 
assessment has been completed and a decision made on pursing the 
process. 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 
3. 



ORDER OF U.S. DISTRICT COURT 



191 



1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 



Therefore, the parties hereto, through their counsel of 
record, stipulate and agree to request a continuance of the 
status conference to August 4, 1986, at 10:00 a.m. 

DATED: January 31, 1986. 

JOHN K. VAN DE KAMP, Attorney General 

of the State of California 
N. GREGORY TAYLOR, 

Assistant Attorney General 
JOHN A. SAURENMAN, 

Deputy Attorney General 



DATED: 



DATED: 



By 



^-^^Ny^^ocAjLu^iMOA/^ 



JOHN A. SAURENMAN 



Attorneys for Plaintiffs 
State of California, et al. 



January 



?/ 



1986. 



ALAN RAMO 
DANIEL P. SELMI 



By '^Wct/ ^ SlI/UX. ^y^/^ 

DANIEL P. SELMI 

Attorneys for Plaintiffs in Intervention 
Citizens for a Better Environment, et al. 

January 31, 1986. 

ROBERT C. BONNOR, 

United States Attorney 
JAMES R. ARNOLD, 

Assistant United States Attorney 
P. HENRY HABICHT, II, 

Assistant Attorney General 
SUSAN V. COOK, Attorney 

United States Department of Justice 



By Q^o/^ i^' Ccy^ h^J^ 

Ctlc&M ti r'r\r\ir ' 



SUSAN V. COOK 

Attorneys for Federal Defendants 
James G. Watt, et al. 

4. 



192 THE CONVENING PROCESS 



1 DATED: January 31, 1986. 

2 PHILIP K. VERLEGER, 
I DONNA R. BLACK, 

3 ' McCutchen, Black, Verleger 6 Shea 



DONNA R. Black 



Attorneys for Defendants in Intervention 
7 Western Oil and Gas Association, et al. 



8 

9 

10 

11 

12 DATED: 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 



ORDER 




UNITED STATED DISTRICT JUDGE 



5. 



CHAPTER 5 - ORIENTATION AND TRAINING OF 
PARTICIPANTS 



Participants in negotiated rulemaking proceedings may or may 
not have had significant negotiation experience and training. 
Mediators for a number of regulatory negotiations have found a 
wide disparity in negotiation experience among the participants, 
particularly where the number of participants is as large as 15 to 25. 
For this reason, most of the regulatory negotiations have begun with 
a pre-negotiation training and orientation session for participants. 
These sessions provide a chance for the parties to get together in an 
informal, educational setting and to help "level the playing field" 
with regard to negotiation skills prior to the beginning of the 
committee's actual work. 

Pre-negotiation training sessions can accomplish the following 
major objectives: 



I 



• 



• 



To augment and update the negotiation skills of the 
participants. 

To allow the participants to become acquainted with 
each other in a neutral setting and to begin to build a 
constructive relationship among themselves. 

To demonstrate consensus building techniques with 
non-threatening examples in the form of 
demonstrations, exercises or simulations. 

To allow the mediator(s) to observe the dynamics of 
interactions among members of the group. 

To provide a common vocabulary and procedures for 
operating consensually. 



Some agencies have been initially reluctant to provide a 
training session because of a concern that participants will feel their 
experience or skill is in question. However, when the sessions are 
offered, reg-neg participants choose to attend and report that the 
orientation is valuable or perhaps essential. 

193 




194 ORIENTATION AND TRAINING 



Generally, agencies have provided 4-6 hours of training on the 
day before the negotiations actually begin. Sessions have been run 
both by experienced federal agency staff and by professional 
trainers, depending on personnel and funds available for the 
negotiation. The mediator chosen for the negotiation may be able to 
conduct the training or reconmiend a trainer. 

The American Arbitration Association, the Society for 
Professionals in Dispute Resolution, and the Administrative 
Conference can provide lists of trainers experienced in teaching 
negotiation skills. The Program on Negotiation at Harvard Law 
School publishes a catalogue of negotiation exercises called 
"Clearinghouse, Teaching Materials on Negotiation and Dispute 
Resolution," from which training materials can be ordered. 
Frequently, federal agency training offices can recommend trainers 
and may have access to contract mechanisms to hire them. (See 
chapter 11 for further information about contacting these 
organizations and chapter 8 for information about contracting for 
services.) In addition, agencies may want to train some of their 
own personnel in negotiating skills. Such courses are regularly 
offered by the Department of Justice's Legal Education Institute, the 
Office of Personnel Management, and various private sources. 



Content of Training Sessions 

The appendix to this chapter contains, as examples, the 
agendas for three training sessions: one run by federal employees 
for the Department of Transportation proceeding on non- 
discrimination in air travel; one by consultant ERM-McGlennon 
Associates for EPA's pesticide exemption negotiation; and one used 
by the Administrative Conference for the Federal Communications 
Commission. 

The common elements of the sessions are short lectures on 
negotiation techniques and demonstrations or role-playing exercises. 
Most of the training sessions have been based on the "principled 
negotiation" methods described in Fisher and Ury, Getting to Yes. 
Lectures address topics such as "BATNA" (best alternative to 
negotiated agreement), interests versus positions, and maximizing 
joint gains ("win/win" rather than "win/lose"). Lectures are 
accompanied by handouts that define and illustrate terms and 
principles. In practice, the quantity of written training material has 
varied from basic introductory information to extensive texts. 



ORIENTATION AND TRAINING 195 



Practice sessions allow the participants to test the effectiveness 
of various negotiation principles and techniques. Sessions have 
included several exercises, building from a simple two-party, one- 
issue exercise to a multi-party, multi-issue exercise. Participants 
break into small groups, each working on the same problem, putting 
into practice the lessons learned. At the conclusion, a debriefing 
session is held, during which participants and trainers discuss how 
the different groups have handled the exercise. The range of 
solutions emerging from the groups helps demonstrate to the 
participants that there is no one way to negotiate and no one 
solution to an issue. The trainers can also help participants explore 
why some negotiation techniques or tactics were more or less 
effective than others. The group exercises have the additional 
benefit of beginning to build constructive relationships and mutual 
respect among the participants. 

The Administrative Conference has recommended that agencies 
conducting negotiated rulemaking consider providing the parties 
with limited, short-term training as outlined here. EPA has 
reported that these pre-negotiation sessions have made a real 
difference in the operation and success of negotiations. EPA staff 
indicate that they have consistently seen participants during the 
course of actual negotiations use the language presented and the 
distinctions drawn in the training sessions. For example, a 
participant can learn that it 4S possible to couch a proposal in terms 
of "what if I agreed to X?" as a way of inventing possibilities for 
exploration, without at the same time committing himself to that 
course. 

A one-day training session will not change an inexperienced 
person into an expert negotiator, but it may provide metiiods and 
tools that will prove beneficial both to the participant and to the 
group as a whole. 



A ppendix 

The appendix contains three sample outlines for a one-day 
training session prior to commencing regulatory negotiations. 



i 




196 ORIENTATION AND TRAINING 

P RE-NEGOTIATION ORIENTATION/TRAINING AGENDA (DOT) 

9:30 a.m. WELCOME AND INTRODUCTIONS 

9:45 PURPOSE OF DAY 

10:00 KEY NEGOTIATION TERMS AND CONCEPTS 

10:15 TWO PARTY EXERCISE 

10:45 DEBRIEF TWO PARTY EXERCISE 

11:00 SECOND EXERCISE 

11:15 DEBRIEF SECOND EXERCISE 

11:30 THREE-PARTY EXERCISE 

12:10 DEBRIEF THREE-PARTY EXERCISE 

12:30 LUNCH — FIVE PARTY EXERCISE ROLES ASSIGNED 

1:30 BEGIN FIVE PARTY EXERCISE 

2:30 DEBRIEF FIVE PARTY EXERCISE 

3:00 SUMMARIZE LEARNINGS/CONCEPTS 

3:30 TIE LEARNINGS TO NEGOTIATIONS 

4:00 CRITIQUE ORIENTATION/TRAINING 

4:10 ADJOURN/ INFORMAL GET-TOGETHER 



DOT TRAINING AGENDA 197 



PURPOSE OF DAY: 



TO INCREASE LIKELIHOOD OF SUCCESS IN THIS NEGOTIATION 
(SUCCESS HERE DEFINED AS BEST POSSIBLE CONSENSUS AGREE- 
MENT ON SOME OR ALL ELEMENTS OF A RULE.) 



TO BUILD ON YOUR EXISTING EXPERIENCE AS NEGOTIATORS 
AND PROBLEM-SOLVERS (IF YOU WEREN'T ALREADY PRETTY 
GOOD, YOUR ORGANIZATION PROBABLY WOULDN'T HAVE SENT 
YOU.) 



TO IMPROVE YOUR UNDERSTANDING OF THE DYNAMICS OF A 
DISPUTE AND ITS MOST CONSTRUCTIVE RESOLUTION 



TO HELP YOU DEVELOP COMMON UNDERSTANDINGS OF 
KEY CONCEPTS, TERMS, AND ROLES 



O TO HELP YOU HONE YOUR PRACTICAL PROBLEM SOLVING AND 
NEGOTIATING SKILLS 



TO HELP YOU GET A SENSE OF WHAT YOUR NEGOTIATIONS WILL 
BE LIKE SO YOU CAN HIT THE GROUND TOMORROW RUNNING 



TO HELP YOU TIE TODAYS LEARNINGS TO YOUR UPCOMING 
NEGOTIATION 



TO HELP YOU GET TO KNOW AND TO GET COMFORTABLE WITH 
OHB ANOTHER BY BEING TOGETHER IN AN INFORMAL SETTING 




B 



198 ORIENTATION AND TRAINING 

KEY NEGOTIATION TERMS AND CONCEPTS ; 

TERMS t 

REPRESENTATIVE ; SOMEONE WITH THE ABILITY TO REPRESENT 
HIS/HER GROUP. SOMEONE WHO MIRRORS THE GROUP'S GOALS AND NEEDS. 
IS ABLE TO ACT IN THE GROUP'S STEAD IN REACHING AND RATIFYING AN 
AGREEMENT. MUST BE ABLE TO SPEAK FOR CONSTITUENCY. 

O FACILITATOR ; THIRD-PARTY NEUTRAL{S) WHO HELP TO KEEP 
THE PARTIES TALKING, LISTENING, OPERATING CONSENSUALLY, AND 
MOVING TOWARDS "GOOD OUTCOMES". 

O MAXIMIZING JOINT GAINS ; SOME OF THE THINGS WHICH ARE 
VERY IMPORTANT TO YOU ARE LESS IMPORTANT TO OTHERS, YOU CAN TRADE 
ACROSS ISSUES. 

PRINCIP LED NEGOTIATIONS ; WHERE YOU NEGOTIATE ON THE 
MERITS OF MAXIMIZING JOINT GAINS AND ATTEMPT TO BE MUTUAL AND IN- 
VENTIVE PROBLEM-SOLVERS. 

O INTERESTS vs. POSITIONS. AN INTEREST IS A BASIC 



UNDERLYING CONCERN WHICH WE SEEK TO ADDRESS. A POSITION IS A 
PARTICULAR STRATEGY TO ACHIEVE THE INTEREST. 

O BATNA — YOUR BEST ALTERNATIVE TO NEGOTIATED AGREEMENT 

A GOOD OUTCOME ; 

— MUST BE PERCEIVED AS FAIR 

— MUST PROCEED FROM A PROCESS VIEWED AS EFFICIENT 

— MUST INCLUDE STABILITY, BE SOMETHING THAT YOU ANQl 
YOUR CONSTITUENCIES CAN LIVE WITH AND WILL IMPLEMENT 

— MUST INCLUDE WISDOM, MUST BE SOUND AND GROUNDED 
ON BEST TECHNICAL, ETC., INFORMATION AVAILABLE. 

PROCESS APPROACHES, E.G., BRAINSTORMING. 



CONCEPTS ; 

O SEPARATE THE PEOPLE FROM THE PROBLEM 

O FOCUS ON INTERESTS NOT POSITIONS 

O INVENT OPTIONS FOR MUTUAL GAIN 

O INSIST ON USING OBJECTIVE CRITERIA 



EPA TRAINING AGENDA 



199 



TRAINING SESSION 

ON 

NEGOTIATING TECHNIQUES 

FOR THE 
PESTICIDE EXEMPTION NEGOTIATING COMMITTEE 




Sponsored By 

Environmental Protection Agency 

September 27, 1984 



Reprinted by permission. 




200 



ORIENTATION AND TRAINING 



B 



TABLE OF CONTENTS 

Page 
INTRODUCTION 1 

• Workshop Goals 2 

• Acknowledgements 2 

• Course Outline 3 

SECTION I: UNDERSTANDING NEGOTIATIONS 4 

• Interests and Issues 5 

Tenant/Landlord - Exercise. 9 

• Dynamics of Negotiations 10 

Horizontal Bargaining 11 

Vertical Bargaining 11 

Self-Vested Unilateral 12 

Conciliatory Unilateral 12 

Interned Factors and Pressure from the 
Extended Table 13 

Collective Participation 13 

SECTION II: CONDUCTING NEGOTIATIONS 14 

Position Development 15 

Presenting Positions 18 

Increasing Receptivity .30 

Caucusing 39 

Generating Alternatives 42 

Closure 46 

Dispute Aftermath 50 

Implementation 54 



EPA TRAINING AGENDA 



201 



APPENDICES 



Do's and Don'ts of Negotiation 58 

Bibliography 60 

ERN-McGlennon Associates 73 

Trainer Profiles 73 

Glossary 75 

List of Principals 77 



B 



li 



B 



202 ORIENTATION AND TRAINING 



INTRODUCTION 

In February 19 83, EPA announced the beginning of its 
Negotiated Rulemaking Project. The Project is intended to 
explore the usefulness of face-to-face negotiations as a 
supplement to the current rulemaking -process. The Project will 
test whether negotiation at an early stage of rulemaking can 
produce rules more quickly, less expensively and with less 
likelihood of litigation. 

After many months of examining candidate rules for the 
Project, EPA selected the Nonconformance Penalty (NCP) rule under 
Section 206G of the Clean Air Act as the first rule. As the 
second rule, EPA has selected a Pesticide Exemption rule under 
Section 18 of the Federal Insecticide, Fungicide and Rodenticide 
Act (FIFRA). A Pesticide Negotiating Committee has now been 
formed consisting of representatives of parties interested in or 
affected by the outcome of the proposed rule. 

The purpose of this training session is to provide the 
members of the Pesticide Exemption Negotiating Committee with an 
opportunity to learn more about the techniques of negotiations. 
In particular, the session will focus on developing practical 
negotiating skills. While it is impossible to teach the wide 
range of negotiating skills in a one day session, the agenda 
presents key issues which should assist participants as they 
enter this first negotiation process. 

This workbook describes the key fundamentals of negotiations 
and is intended for use during the training session and as a 
reference guide throughout the negotiations. The text has been 
prepared for EPA by ERM-McGlennon Associates. The workbook 
provides you with an unusual opportunity to create your own 
personalized resource guide on negotiations. We have developed a 
text with lesson outlines which will enable you, in certain 
sections, to make your own notes on the information presented by 
the trainers. This approach will help you to personalize and i 

reinforce the basic information presented at the training j 

session. ' 

The workbook is organized into three sections: 

SECTION 1: UNDERSTANDING NEGOTIATIONS 

Discusses dynamics of negotiations and individuals behavior \ 
during conflicts. 

SECTION II: GENERIC STEPS IN THE NEGOTIATION PROCESS 

Eight steps of negotiations are presented. The practical 
techniques used to prepare for negotiations, conduct 
negotiations and reach a settlement are emphasized. 



EPA TRAINING AGENDA 203 



APPENDICES 

Includes a listing of the Do's and Don'ts of negotiations as 
well as a complete bibliography of negotiating and mediating 
references. It describes ERH-McGlennon Associates and 
provides a profile of each of the trainers. A glossary of 
terms used in the text is also included. 

Workshop QqslIS 

The goals of this workshop are as follows: 

• to educate participants' in the fundamentals of 
environmental negotiations 

• to improve participants' awareness of the dynamics of a 
dispute 

• to develop participants practical negotiating skills 
including position development, bargaining strategies 
and negotiating style 

• to demonstrate to participants ways to apply 
negotiating skills to the upcoming Pesticide Exemption 
negotiation sessions. 

Acknowl edgements 

Portions of this workbook have been drawn from environmental 
negotiation training material prepared for the Edison Electric 
Institute. We would also like to thank the Conservation 
Foundation, ACCORD, the National Center for Collaborative 
Planning and Community Service, and the American Arbitration 
Association for allowing us to incorporate sections of their 
work. 



B 



204 



ORIENTATION AND TRAINING 



COURSE OUTLINE 



STARTING 
TIMES 
AM/PM 



TOPIC 



PROCESS 



Thursday, September 27, 1984 

11:00 a.B. Introduction 




11:30 a.m. 



Welcome 

1 Op - 1 Down 

Introduce Trainers 

Workshop Goals 

Workbook and Agenda 

Review 

Sel£ Introductions 



Chris Kirtz - EPA 
Exercise/Lincoln 

Oiscussion/McGlennon 



Understanding Negotiations 

- Interests and Issues Exerclse/HoGlennon 

- Dynamics of Negotiations Lecture and Exercise/ 

Lincoln 

- Generic Steps In the 

Negotiation Process Discussion/MoGlennon 



12:30 p.m. 
1:15 p.m. 

2:00 p.m. 
2:45 p.m. 
3:00 p.m. 
3:30 p.m. 

4:00 p.m. 

5:00 p.m. 

5:00 - 6:00 p.m. 



LONCH 

Position Development 

Presenting Posi-tions 

Increasing Receptivity 

Caucusing 

Generating Alternatives 

Closure, Dispute Aftermath, 
Implementation 

Evaluation and Wrap-Up 

Cheese and wine Reception 



Lecture and Exercise/ 
Lincoln 

Lecture/Lincoln 

Lect u r e/M oG 1 e nno n 

Lecture/Lincoln 

Exercise and 
Dlscusslon/McGlennon 

Lecture/Lincoln 

Dlscusslon/McGlennon 

All 



FCC TRAINING AGENDA 205 



FEDERAL COMMUNICATIONS COMMIS SION REG-NEG TRAINING 
presented by the 

ADMINISTRATIVE CO NFERENCE OF THE UNITED STATES 



PRE-NBGOfTIATION ORTRNTTATION AflENDA 
;^ril 10, 1995 



9:30-9:45 WELCOME 

9:45-10:15 PARTICIPANT INTRODUCTIONS & 

MEASURES OF SUCCESS 

10:15-10:45 THE REGULATORY NEGCTIATICaT (REG NBG) 

PROCESS 

10:45-11:00 FCC EXPECTATIONS 

11:00-11:15 BREAK 

11:15-12:00 FCC PROTOCOLS 

12:00-12:45 SUGGESTED ROLES & WAYS TO WORK TOGETHER; 
KEY NEGOTIATING TERMS AND CC»JCEPTS 

12:45-2:00 LUNCH 

2:00-3:15 NBGOTIATICN EXERCISE, DEBRIEF, ROLLING BREAK 

3:15-3:55 PARTIES' EXPECTATIC»IS & "INTERESTS'... 

A DISCUSSION 

3 : 55-4 : 05 NEXT STEPS/REMAINING QUESTIONS 

4:05-4:10 MEASURES OF SUCCESS REVISITED 

4:10-4:15 THANKS -- MEETING FEEDBACK/ADJOURN 



I 



I 



CHAPTER 6 - NEGOTIATING THE RULE 



In traditional rulemaking, much energy, time, and other 
resources are expended by the agency, the regulated community, 
and the public on unilateral activities directed toward achieving 
divergent goals. Negotiated rulemaking restructures the process so 
as to channel the energy and resources toward cooperative problem- 
solving, so that the result will be a better, more acceptable rule. An 
investment in planning and carrying out the negotiation phase of 
reg-neg can well be outweighed by the long-term benefits of 
reduced costs of compliance, easier enforcement, greater 
satisfaction, and less litigation. 

The negotiation phase is the central feature of the reg-neg 
process. While it is conceived as the major opportunity for public 
input in the proceeding, it is not just a substitute for public hearings 
or a public comment period, where each interested party submits its 
views and waits to see what will happen. Instead, it is a period of 
dynamic activity requiring careful planning and a reasonable period 
of time for parties, including the agency, to become acquainted with 
the process, the substantive issues, and the viewpoints of the other 
parties. These steps must occur before any real progress can be 
made in crafting solutions to the problems. Adequate time is also 
needed during the negotiations for participants to advise ~ and be 
advised by ~ their constituencies about the issues and the 
negotiations. Before a final commitment is made, the participants 
must have an opportunity to assure themselves that they really are 
speaking for their constituencies. 

How much time any of these steps should take in a particular 
reg-neg depends, of course, on the complexity of the issues and the 
nature of the interests involved. In general, however, it will be 
unrealistic to expect negotiations to be completed in a single 
meeting ~ even if the meeting is several days in length. 

The Reg-Neg Act assumes that a facilitator will be used and 
specifies a number of duties for that person, including chairing 
meetings and keeping records, as well as assisting the committee 
members in the negotiations. (5 U.S.C. §566) See chapters 4 and 
8 for ftirther discussion of selecting appropriate facilitators. 



207 



E 



i 



208 NEGOTIATING THE RULE 



Design of the Negotiations 

In designing the negotiation phase of reg-neg, the agency and 
its convenor and facilitator need to consider two kinds of issues: 
some related to the substance of the rule and some that are strictly 
procedural issues. While many of the operating procedures of the 
negotiating committee should be resolved by the committee itself, 
the agency should take the lead in preparing and presenting 
proposals for committee operation, both to save time and to 
demonstrate leadership. Many of the issues would have to be faced 
in preparing for any significant negotiation, but some are unique to 
negotiated rulemaking. The agency's convenor and facilitator will 
have much to contribute in resolving many of these issues due to 
their previous contact with the parties and their professional dispute 
resolution skills and experience. 

The following issues generally should be addressed by the 
agency in advance of the negotiations. Some of these questions may 
require consideration by the negotiating committee as well. 

1. Agency Coordination: Who will negotiate on behalf of the 
agency? How will the agency's negotiator interact and coordinate 
with agency rulemaking and technical staff, consultants, managers, 
and top decisionmakers, so that the negotiator can act effectively 
without delaying the negotiations? What other programs or offices 
(within the agency or in other agencies) will be affected by or 
interested in the proceeding? How will the negotiator deal with 
other interested federal agencies (including the Office of 
Management and Budget), with interested congressional staff, and 
with news media? 

2. Issue Selection and Management: What issues are 
negotiable? What constraints are imposed on each of these issues 
by statute and agency policy? What positions will the agency take 
initially? What is the range of solutions acceptable to the agency? 
What are the expected needs and positions of the other parties at the 
table? Do the issues lend themselves to consideration by 
subcommittees? Will the negotiating committee need access to 
contract resources for research and investigation? If so, how will 
these resources be made available and be managed? How will the 
issues be communicated to the parties? 

3. Desired Outcomes: What is the agency's desired outcome: 
a draft rule or a set of resolved issues for agency use in drafting the 
rule? Will the agency offer as a starting point for negotiations its 
own draft rule or a set of issues formulated by the agency? (An 



NEGOTIATING THE RULE 209 



initial draft can speed up or hinder the progress of negotiations, 
depending on whether the parties feel that their input is really 
desired.) 

4. Consensus: What is the agency's definition of consensus? 
What does the agency plan to do if consensus is not reached on all 
issues? 

5. Timing: What is the deadline for reaching agreement? 
What is the source of the deadline? How flexible is the deadline? 
What happens if the deadline is not met? 

6. Logistical Arrangements: Where should meetings be held? 
How much space is needed and for how much time? Will additional 
rooms be needed for subgroup meetings? What supplies are needed 
(audio/visual equipment, paper, pens, easels and large pads for 
display of agendas and proposals, name tags, name plates, etc.) and 
who is responsible for providing them (agency, contractor, 
facilitator)? Should snacks and lunches be served during meetings 
to reduce the time spent reassembling the committee? Should the 
agency or the participants pay for snacks and lunches? 

7. Committee resources: What resources will the agency make 
available for the committee, such as computers for word processing 
or handling data, secretarial services, copying services, conference 
rooms, or funds for travel or expert consultants? 

8. Notices: If the committee is chartered under the Federal 
Advisory Committee Act (FACA), what notices of meetings must 
be placed in the Federal Register? (See chapters 3 and 4 and their 
appendices.) In the unusual instance that the committee is not 
covered by FACA, what notices are appropriate and where should 
they be published? Who is responsible for writing the notices and 
when must they be published? 



The following questions normally are best resolved by the 
negotiating committee, although the agency should consider its own 
position on them in advance. Most of these issues should be 
addressed in the committee's "organizational protocols." This term 
refers to the committee's own internal rules for organization and 
operation. The Reg-Neg Act provides that the committee may adopt 
such procedures, and this is ordinarily done at the first meeting. (5 
U.S.C. §566(e)) Committee procedures are not subject to any 
requirement of public notice and opportunity for comment. (See the 
appendix for sample organizational protocols.) 



a 



210 NEGOTIATING THE RULE 



1 . Scheduling of Meetings: How many will be needed to 
address the issues? How should meetings of the ftill committee and 
of subcommittees be coordinated? How often should meetings 
occur? Where should meetings be held - in Washington, D.C., or 
another city, or in a variety of locations, and on whose premises? 
Can a schedule be set in advance to reduce the administrative 
burden of fitting into dozens of people's calendars and finding 
available conference facilities? 

2. Advisers and observers: Because each committee member 
represents some constituency, each can be expected to have one or 
more advisers. When should these advisers be allowed to speak at 
meetings? Since committee meetings will be open to the public, 
how will questions or statements from observers be handled? How 
will the committee handle written public comments received during 
the negotiations? Should there be any special provisions for dealing 
with the press? 

3. Agendas: Will the agency or the facilitator propose 
agendas? What is the procedure for the committee to change the 
proposed agenda? 

4. Recording and communication: Who will write minutes and 
how detailed do they have to be? (The Reg-Neg Act, §566(d), 
assigns to the facilitator the responsibility of managing the keeping 
of minutes and other records required by § 10(b) and (c) of FACA. 
Minutes can be summaries rather than complete transcripts.) How 
and when will minutes be distributed? Who will handle 
communications between agency and committee members, and 
among the committee members ~ the agency staff or the facilitator 
or some combination of the two? What restrictions will be set on 
future use of records, documents exchanged by negotiators, and 
statements? (Documents generated by the committee are public 
documents, but the parties probably will want to agree, for 
example, that written or oral statements made during the 
negotiations will not be used by other parties in any later litigation. 
See, for example, paragraph IV. A in the organizational protocols 
for the woodburning stoves reg-neg and paragraph 7. a in the 
protocols for the oil spill vessel response plans reg-neg, reprinted in 
the appendix. The Reg-Neg Act, §566(d), provides that personal 
notes and materials of the facilitator or committee members are not 
subject to the Freedom of Information Act.) 

5. Caucuses and subcommittee meetings: Are subcommittees 
or working groups needed to focus on specific issues? How often 
will they meet? How will caucuses be called? Will a facilitator be 



NEGOTIATING THE RULE 211 



available for caucuses and subcommittee meetings? How will 
reports from these meetings be made to the full committee? 

6. Use of available resources: How will the committee use 
and manage any available resources including funds for travel or 
consultants? 

7. Consensus: What is the committee's definition of 
consensus? Will formal votes be taken, or will agreement be 
determined informally? Will the committee members be required to 
sign an agreement to signify consensus on the end product of the 
negotiations? Is the committee aiming for agreement on specific 
regulatory language or agreement on general principles? 



There is no one right way to handle any of the above 
questions. Much depends on the rule under negotiation, the 
participants in the negotiation, and the time frame available for the 
negotiation. The agency should make every effort to address these 
issues prior to the beginning of the negotiations and to prepare some 
suggested procedures and schedules for consideration of the 
committee at the first meeting. EPA, for example, prepares draft 
organizational protocols for presentation at the committee's 
organizational meeting. Sample protocols are reprinted in the 
appendix. 



Organizational Meeting 

Organizational details should be decided by the committee at its 
first meeting. Often, if the rule is complex and the negotiations are 
expected to take several months, it may take most of a day for the 
parties to consider organizational issues, both substantive and 
procedural, and to reach consensus on what the committee's goals 
are, how the substance of the subject matter will shape the structure 
of subcommittees and schedules, and how the committee is to 
operate. If the first meeting of the committee is purely 
organizational, and no decisions are to be made about advising the 
agency, then it appears not to be necessary for the advisory 
committee charter to be approved in advance. 

For this first meeting, the agency should propose an agenda 
that includes introduction of the participants and identification of the 
interests they represent, a briefing on the concept of regulatory 
negotiations, a discussion of the issues involved in the rule under 
negotiation, and proposals for operation of the committee. The 



B 



B 



212 NEGOTIATING THE RULE 



committee's first exercises in reaching consensus should be to 
decide on the issues to be negotiated and to agree on written 
procedures for committee operation and use of resources. When the 
organizational issues are resolved, it is helpful for the facilitator to 
emphasize the positive idea that the committee has already reached 
consensus on a number of issues. If the Federal Register notice of 
intent resulted in additional parties requesting representation or 
additional issues to be negotiated, these topics may also be 
addressed at the organizational meeting. 



Consensus 

The definition of the term "consensus" is key to the success of 
the negotiations. Before deciding to participate in negotiated 
rulemaking, each party will have come to some preliminary 
understanding of what "consensus" means. (The implications of 
reaching consensus are also discussed in chapter 4 in the context of 
the convenor educating potential participants about the negotiated 
rulemaking process. See "Steps in the Convening Process.") The 
notion of consensus should be discussed at the committee's first 
meeting so that there will be a shared understanding of the goal of 
the committee. 

The Reg-Neg Act defines "consensus" as follows: 

unanimous concurrence among the interests represented on 
a negotiated rulemaking committee . . ., unless such 
committee- 

(A) agrees to define such term to mean a general but not 
unanimous concurrence; or 

(B) agrees upon another specified definition. (5 U.S.C. 
§562(2)) 

Generally, in a practical sense, consensus has meant that no 
interest represented on the committee opposes the decision on the 
item under consideration. Achieving consensus does not necessarily 
require a formal yes or no vote, nor is it necessary that each interest 
represented affirmatively like the decision, merely that it does not or 
will not oppose the decision if implemented. Some committees have 
carried out their negotiations without a formal vote ever being 
taken. A committee might decide, for example, that consensus will 
be reached if each participant refrains from challenging a proposal 
without having to take a positive step such as signing a formal 
agreement. Each committee should be offered the chance to define 



NEGOTIATING THE RULE 213 



consensus in its own way and to decide on how consensus will be 
recognized by the facilitator and by the committee. 

Parties that are willing to commit themselves formally to 
support an agreement in any subsequent litigation may nevertheless 
have a problem with a dissenting constituent. Throughout the 
negotiations, the participants should be aware that they may not be 
able to bind all of their constituents to an agreement. For example, 
a national organization's representative may speak authoritatively 
for the combined interests of the members of the organization, but 
an individual company or chapter may perceive effects on itself 
different from the effects on the aggregate interest. That single 
member may later challenge the rule, either by filing critical 
comments with the agency or by filing a lawsuit in court. 

If such differences are known before an agreement is signed, 
and they cannot be settled through negotiations within the interest 
group, then the organization's representative should inform the 
other parties at the table. Under these circumstances, the 
representative of the interest group or national organization can still 
support a consensus agreement in good faith because of his view of 
the aggregate interest. If an individual company or chapter files suit 
after the final rule is promulgated, then the national organization 
would be expected to continue its support of the rule. 

Because orderly procedure will require the committee to 
address issues sequentially, the parties must understand that during 
the negotiations no decision of the committee will be considered 
final until all issues have been discussed and a preliminary 
consensus has been reached on each. This recognizes the fact that 
each issue has a different importance to each party and that the 
nature of negotiation involves trading one's less important issues for 
concessions on more important issues. 



Structuring the Negotiating Sessions 

Each committee's approach to negotiations will depend on the 
individual circumstances and the personalities who are involved. 
Nevertheless, there are some general structural options that have 
been useful in successful regulatory negotiation sessions. 

In framing the issues to be negotiated, the committee will 
probably want to identify any underlying assumptions that 
participants may have. Sometimes it is helpful to cluster related 



E 



B 



214 NEGOTIATING THE RULE 



issues, either as an aid to setting the agenda for the committee or 
for assignment to subcommittees for more focused attention. 

Subcommittees or working groups may be formed in order to 
assemble data, or to examine issues and prepare proposals for 
consideration by the full committee. Subconunittees, of course, 
should have a balanced membership and should not be authorized to 
make fmal decisions. Parties with allied interests may want to 
caucus for the purpose of exploring joint negotiating positions, and 
such meetings should not be considered as subcommittee meetings. 
(See chapter 3 for a discussion of whether FACA requires meetings 
of less than the full committee to be open to the public.) 

It is usually most convenient to schedule subcommittee 
meetings on the day before or the day after a meeting of the full 
committee, particularly if members come to the negotiations from 
different parts of the country. If subcommittees are scheduled to 
meet at the same time, it is important to ensure that any parties who 
want to participate in more than one of the concurrent meetings will 
have enough people available to do so. An interest may be 
represented on a subcommittee by its designated member of the ftill 
committee, by a formally designated alternate representative, or by 
any other person with appropriate expertise. 

Some agencies have made technical consultants available to 
negotiating committees to assist them as needed during the 
negotiations. In other instances, the committee has retained an 
expert either to advise the entire group or to advise an individual 
interest. 



Meeting Management 

The Reg-Neg Act provides that a facilitator will chair meetings 
of the committee and assist the members in conducting discussions 
and negotiations. (5 U.S.C. §566(d)) Beyond mediation skills, an 
experienced facilitator will know how to manage meetings 
efficiently in order to achieve consensus. These skills are 
particularly important because of the large numbers of parties and 
typically short deadlines for reaching agreement. Generally, a draft 
agenda should be sent to participants in advance. Discussion and 
adoption of the agenda should be the first order of business at each 
meeting. The facilitator is then responsible for keeping the meeting 
on schedule or calling for adjustments in the schedule if needed. 



NEGOTIATING THE RULE 215 



The facilitator is also responsible for keeping a list of items 
and issues in front of the committee so that each party can see the 
progress of the meeting. Often this is the job of a recorder who 
uses a blackboard, overhead projector, or large pads on easels to 
write down and display agendas or items under discussion, the 
issues and their resolution. A separate recorder may be taking 
minutes or tracking changes in draft document language. 

A skilled mediator or facilitator will help the committee 
recognize when a break, caucus or subcommittee meeting is needed. 
Often an impasse can be overcome by using one of these techniques. 
A facilitator can also recognize when consensus has been reached, 
even though discussion of positions may be continuing, and can also 
recognize when an impasse occurs. 



Deadlines 

The "axiom" that 90% of the progress in a negotiation occurs 
in the last 10% of the time allotted seems to apply to reg-neg. It is 
important for the negotiations to be driven by a deadline, whether 
statutory, judicial, or based on the agency's own regulatory agenda. 
If the deadline is imposed upon the agency, then the agency must be 
prepared to take steps to meet the deadline even if negotiations 
reach an impasse. Where the agency itself has created the deadline, 
the agency can decide to extend the deadline if the parties appear to 
be close to consensus or a breakthrough in the negotiations appears 
imminent. However, all parties, including the agency, should feel 
some pressure to reach a resolution. 



Coordination. Agency Review and Concurrence 

Negotiated rulemaking takes place as a supplement to the 
normal rulemaking procedures of an agency. The reg-neg process 
generally will force a more compressed schedule of agency internal 
review of issues because the agency's negotiator will need to 
conform to the meeting schedule agreed to by the committee. That 
schedule cannot easily be altered because of die commitments of the 
outside parties. This need for compression should not result in 
skipping any of the necessary review and concurrence steps within 
the agency. 

Agency management and other related program offices need to 
be kept up to date on the issues under consideration and the 
proposed solutions if the agency's negotiator is to act effectively. 



B 



p 



216 NEGOTIATING THE RULE 



Other parts of the government such as the Office of Management 
and Budget, other affected agencies, and interested congressional 
committee staff may need to be briefed frequently. The worst thing 
that can happen to a negotiator is to agree to an apparent committee 
consensus on an issue and then to have agency management or 
another federal entity disagree and force a change or 
reconsideration. This endangers the credibility of both the 
negotiator and the agency and hampers further consensus efforts of 
the committee. The best way to minimize the likelihood of such a 
development is to have adequate ongoing communication and 
coordination with other concerned government offices during the 
course of the negotiations. The negotiator will then be better 
prepared to determine when it is preferable to make on-the-spot 
decisions on the issues and when consultation with other officials is 
required before a decision can be made. 



A ppendix 

The appendix contains sample Federal Register notices for 
negotiating sessions. Also included, as examples, are the 
organizational protocols for EPA's negotiating committee on 
standards for woodburning stoves and the Coast Guard's committee 
on oil spill vessel response plans. The organizational protocols list 
basic operating procedures for the committee. 



OSHA MEETING NOTICE 



217 



60 Fed. Reg. 15888 (Mar. 28, 1995) 



DEPARTMENT OF LABOR 

Occupational Safety and Health 
Administration 

29 CFR Part 1926 

Steel Erection Negotiated Rulemaking 
Advisory Committee 

agency: Occupational Safety and Health 
Admihistration (OSHA), Labor. 
ACTION: Notice of committee meeting. 

summary: Under the provisions of the 
Federal Advisory Committee Act 
(FACA). notice is hereby given of a 
meeting of the Steel Erection Negotiated 
Rulemaking Advisory Committee 
(SENRAC). Notice is also given of the 
location of the meeting! This meeting 
will be open to the public. Information 
on room numbers will be available in 
thu lobby of the designated building. A 
schedule of additional meetings will bo 
provided in a future notice. 
DATES: The meeting is scheduled for 
April 17-19, 1995. The meeting will 
begin at 1:00 p.m. on April 17lh. 
addresses: Hyatt Hotel at Dulles 
Airport — 2300 Dulles Corner Boulevard, 
Hcmdon. VA 22071; telephone (703) 
713-1234. 

FOR FURTHER INFORMATION CONTACT: Ann 
Cyr. Acting Director, Office of 
Information and Consumer Affairs, 
OSHA. U.S. Department of Labor, Room 
N-3647. 200 Constitution Avenue, 
N.VV.. Washington, D.C. 20210; 
telephone (202) 219-8151. 

supplementary information: On May 
1 1 , 1994, OSHA announced that it had 
established the Steel Erection 
Negotiated Rulemaking Advisory 
Committee (SENRAC)(59 PR 24389) in 
accordance- with the Federal Advisory 
Committee Act (FACA), the Negotiated 



Rulemaking Act of 1990 (NRA) and 
section 7(b) of the Occupational Safety 
and Health Act (OSH Act) to resolve 
issues associated with the development 
of issues are now occurring at the 
meetings. 

All interested parties are invited to 
attend the Committee meetings at the 
time and place indicated above. No 
advanced registration is required. 
Seating will be available to the public 
on a first-come, first-served basis. 
Individuals with disabilities wishing to 
attend should contact the Facilitator to 
obtain appropriate accommodations. 

During the meeting, members of the 
general public may informally request 
permission to address the Committee. 

Minutes of the meetings and materials 
prepared for the Committee will be 
available for public inspection at the 
OSHA Docket Office, N-2625, 200 
Constitution Ave., N.VV,, Washington, 
D.C. 20210; telephone (202) 219-7894. 
Copies of these materials may be 
obtained by sending a written request to 
the Facilitator. 

The Facilitator, Philip J. Harter, can 
be reached at Suite 404, 2301 M Street, 
NW. Washington, D.C. 20037; telephone 
(202) 887-1033, FAX (202) 887-1036. 

Authority: This document was prepared 
under the direction of Joseph A. Dear, 
Assistant Secretary of Labor for Occupational 
Safety and Health, U.S. Department of L.abor, 
200 Constitution Avenue, N.W., Washington, 
D.C. 20210. pursuant to section 3 of the 
Negotiated Rulemaking Act of 1990, 104 Stat. 
4969. Title 5 U.S.C. 561 et seq.; and Section 
7(b) of the Occupational Safety and Health 
Act of 1970, 84 Stat. 1597. Title 29 U.S.C 
C56. 

Signed at Washington, DC, this 22nd day 
of March 1995. 
Joseph A. Dear, 
Assistant Secretary of Labor. 
|FR Doc. 95-7527 Filed 3-27-95; 8:45 amj 
BILUNG CODE 4S10-26-P 



218 



NEGOTIATING THE RULE 



51 Fed Reg. 18661 (May 21. 1986) 51 Fed Reg. 23468 (June 27. 1986) 



D 



Aq Op#nli— Mwgcf tht Mmv Soiirce 
Pert onnance Standards for Reaidanliai 
Wood Combustion UnHs M eQ uMa tad 
Rulemaking Advisory Commlttett 

As required by section 9IalI2) of the 
Federal Advisory Committee Act (Pub. 
L. 8^-46»). £PA » fiv«g aetioe of as 
open meeting of the Advisory 
Committee on New. Source Performance 
Standards for Residentinl Wood 
Combustion Units. 

The meeting is scheduled on )une 11 
and 12. 1M& and %viU be heki at the 
National Institute for Dispute 
Resolution. 1901 L Street. NW.. Suite 
600, Washington. DC 20036. Each day 
the meeting will begin al 9:00 a.m. and 
will run unlii oompletion. 

The purpose oi the )une meeting is to 
work on substantive issues, inclwlinf;: 
(1) Catalyst replacement (what policies 
should be -applied). (2) selecting the beat 
developed (echoology. and (3) deciding 
on the level of the standard {including 
whether there should be separate 
standards for catalytic and non-catalytic 
stoves). At this meeting, we anticipate 
the group will continue working on the 
draft language of the proposed rule, 
possibly revisiting some of the issues 
from prior meetings. 

if interested in attending, or in 
recetrin^ more nrformation. please 
contact Kathy Tyson at (202) 382-5352. 

Oh led: May 14. 198G. 
Millon Russeil. 

Assistant Administruturfur Policy, I'hnninjt 
and Evaluation. 
|FR Uoc. 8&-11516 Filed 5-20-86: 8:45 am] 

BILLINO CODE CMO-SO-M 



(OPPE-fRL-3040-51 

New Sourca Port ormanca Standarda 
for Rasidantial Wood Combustion 
Units, Nagotiatad Rulemaking 
Adviaory Conunittee; Open Meeting 

As required by section 9(a)(2) of the 
Federal Advisory Committee Act (Pub. 
L 92-463). EPA is giving notice of the 
last two open meetings of the Advisory 
Committee on New Source Performance 
Standards for Residential Wood 
Combustion Units. 

The first two-day meeting is 
scheduled on Wednesday. July 16. and 
Thursday. July 17, 1986. The second two- 
day meeting is scheduled on . 
Wednesday. August 20. and Thursday. 
August 21. 1986. All days, the meetings 
will be held at the national Institute for 
Dispute Resolution. 1901 L Street. NW.. 
Suite 600. Washington. DC 20036. All 
days, the meetings will begin at 9KX) a.m. 
and will run until completion. 

The purpose of the July meeting is to 
review a number of the issues discussed 
in prior meetings that were not resolved 
Topics will include the selection of BDT. 
the selection of emission levels, and 
weighting bases. At this meeting, we 
anticipate the group will woric toward a 
consensus on the concepts and language 
of the proposed rule. 

The purpose of the August meeting is 
to reach consensus on concepts and 
language to be used for the Notice of 
Proposed Ruelmaking on New Source 
Performance Standards for Residential 
Wood Combustion Units. 

If interested in attending, or in 
receiving more information, please 
contact Kathy Tyson at (202) 382-5352. 

Dated: June 23. 1986. 
MihoD RusmU, 

Assistant Administrator for Policy. Planninfi 
and Evaluation. 

[FR Doc. 6&-14551 Filed 6-26-66: 8:45 am] 
aiujMO coot SSM so M 



EPA ORGANIZATIONAL PROTOCOLS 219 



March 20, 1966 

ENVIRONMENTAL PROCTECTION AGENCY 

NEGOTIATING COMMITTEE FOR 

NSPS FOR RESIDENTIAL WOOD COMBUSTION UNITS 



ORGANIZATIONAL PROTOCOLS 



I. PARTICIPANTS 

A. Interests Represented . Any Interest that would be sub- 
stantially affected by an EPA new source performance 
standard for residential wood combustion units may be 
represented on the negotiating committee. Parties may 
group together into caucuses to represent allied inter- 
ests. 

B. Additional Parties . After negotiations have begun, addi- 
tional parties may join the Committee only with the con- 
currence of the Committee and if within the number of 
parties permitted under the Committee's charter. 

C. Representatives. A senior representative of each party 
or their alternate roust attend each full negotiating ses- 
sion. The designated representative may be accompanied 
by such other individuals as the representative believes 
is appropriate to represent his/her interest, but only 
the designated representative will have the privilege of 
sitting at the negotiating table and of speaking from the 
floor during the negotiations without Committee approval, 
except that any Committee member may call upon a tech- 
nical adviser to elaborate on a relevant point. 

D. Constituents' Interests . Participants are expected to 
represent the concerns and positions of the interests of 
their constituents and to ensure that any agreement de- 
veloped by the Committee is acceptable to the organiza- 
tion from which the participant comes. 

II. DECISIONMAKING 

A. Consensus . The Committee will operate by consensus. 
Committee decisions will be made only with the concur- 
rence of all interests represented. The goal of the Com- 
mittee is to reach a consensus that will take the form of 
a written statement that will be signed by all parties. 

B. Workgroups . Smaller working groups may be formed to 
address specific issues and to make recommendations to 
the Committee. Working groups are not authorized to make 
decisions for the Committee as a whole. Their meetings 
will be held between the full sessions. Working group 
meetings will be scheduled in the same location and time 



220 NEGOTIATING THE RULE 



whenever possible. All committee members will be noti- 
fied of all vorking group meetlnge. 

C. Agendas . Meeting agendas will also be developed by 
consensus. The Committee will determine if information 
requests are reasonable and relevant. 

D. Impasse . If a deadlock or Impasse Is declared by any 
party, the facilitator will be available to help the 
deadlocked parties to try to resolve the Impasse. 

E. Caucus. A caucus can be declared by any participant at 
any tine. 



III. EPA USE OF AGREEMENT 

EPA is committed to using any consensus reached in these 
negotiations as the basis of a proposed rulemaking. 



IV. SAFEGUARDS FOR THE PARTIES 

A. Good Faith . All participants must act in good faith In 
all aspects of these negotiations. Specific offers, 
positions, or statements made during the negotiations may 
not be used by other parties for any other purpose or as 
a basis for future litigation. Personal attacks and 
prejudiced statements will not be tolerated. 

B. Right to Withdraw . Parties may withdraw from the 
negotiations at any time without prejudice. 

C. Others' Positions . No party will hold discussions with 
the press characterizing the position of any other party 
if a party withdraws. 

D. Information . 

(1) All parties agree not to withhold relevant 
Information. If a party believes it cannot or should 
not release such Information, it will provide the 
substance of the information In some form (such as by 
aggregating data, by deleting non-relevant con- 
fidential information, by providing summaries, or by 
furnishing it to a neutral consultant to use or 
abstract) or a general description of It and the 
reason for not providing it directly. 

<2> Parties will provide information called for by this 
paragraph as much in advance of the meetings as is 
reasonably convenient. 

(3) All parties agree not to divulge information shared 
by others in confidence. 



EPA ORGANIZATIONAL PROTOCOLS 221 



(4) Information and data provided to the Committee is a 
matter of public record. 

V. OPEN PROCESS 

The negotiations will be conducted under the Federal Advi- 
sory Committee Act ( PACA ) . Negotiating sessions will be 
announced in the Federal Register prior to the meeting and, 
consistent with FACA requirements, will be open to the pub- 
lic. The proceedings will not be electronically recorded, 
but draft minutes of Committee meetings will be kept and 
approved by the Committee. The minutes will be made avail- 
able to the public on request. 

VI. SCHEDULE 

A. Time and location . Negotiating sessions will initially 
be held once each month. The first negotiating session 
is scheduled for March 20. 1986. Unless otherwise agreed 
upon, a deadline of four months for the negotiations will 
be established. The location of the meetings will be 
decided by the group. 

B. Discontinue if unproductive . The participants may dis- 
continue negotiations at any time if they do not appear 
productive. 

VII. FACILITATOR 

A neutral facilitator will work with all the parties to 
ensure that the process runs smoothly. 



222 NEGOTIATING THE RULE 



January 8, 1992 



UNITED STATES COAST GUARD 

NEGOTIATING COMMITTEE FOR 

TANK VESSEL RESPONSE PLANS AND THE CARRIAGE OF 

DISCHARGE-REMOVAL EQUIPMENT 

ORGANIZATIONAL PROTOCOLS 



GOAL OF THE COMMITTEE 

The goal of the Negotiating Committee is to reach consensus 
on recommended proposed and final regulations concerning tank 
vessel response plans and the carriage and inspection of 
discharge-removal equipment pursuant to the Oil Pollution Act 
of 1990. 



PARTICIPANTS 

a. Interests Represented. Any interest that would be 
significantly affected by Coast Guard regulations 
governing tank vessel response plans and the carriage of 
removal equipment may be represented in the negotiations. 

b. Interest Caucuses. Organizations, agencies, companies, 
or individual may Join with other allied interests to 
form a caucus. An interest caucus may authorize one or 
more individuals to represent the caucus. 

c. The Negotiating Committee. Each organization or interest 
caucus that is represented in the negotiations shall 
appoint a designated number of members of the Negotiating 
Committee. Each organization or interest caucus that is 
represented on the Committee shall be deemed a party to 
the negotiations. 

d. Alternates for Committee Members. Each party to the 
negotiations may designate an alternate committee member. 
Alternates may substitute for Committee Members in the 
event the Member cannot attend a session of the 
Negotiating Committee. 

e. Additional Parties. Additional parties may Join the 
Committee after negotiations have begun only with the 
concurrence of the Committee. 

f. Attendance at Meetings. 

( 1 ) Each Committee Member agrees to make a good faith 
effort to attend every session of the Negotiating 



J 



OIL SPILL PROTOCOLS 223 



Orpanlzatlonal Protocols for Tank Vessel Response Plans 

Conunlttee. The Cominlttee Member's altexrtate agrees 
to make a good faith effort to attend any Committee 
meeting that the Member is unable to attend. 

(2) The Committee Member may be accompanied by such 
other individuals as the Committee Member believes 
is appropriate to represent his/her Interest. 

(3) Only the Committee Member or the alternate will have 
the privilege of sitting at the negotiating table 
and of speaking from the floor during the 
negotiations without Committee approval, except- 

(a) any Committee Member may call upon a technical 
adviser to elaborate on a relevant point, and 

(b) pursuant to the Federal Advisory Committee Act, 
any person attending the Committee meetings may 
address the Committee if time permits or file 
statements with the Committee. 

g. Constituents' Interests. Committee Members are expected 
to represent the concerns of their Interest group to 
ensure that any agreement developed by the Committee is 
acceptable to the organization or caucus which the 
Committee Member represents. 



3. DECISIONMAKING 

a. Consensus. The Committee will operate by consensus. 
Committee decisions will be made with the concurrence of 
all parties to the negotiations. 

b . Workgroups . 

(1) Smaller workgroups may be formed to address specific 
Issues and to make recommendations to the Committee. 
The membership of each workgroup shall consist of no 
more than fifteen people. Each party may designate 
members of each workgroup. Other individuals who 
the Committee believes would enhance the functioning 
of a workgroup or representatives of Interests that 
would be significantly affected by the topics 
addressed by the workgroup but which are not 
otherwise represented on the Negotiating Committee 
may also serve on that workgroup. Not all 
organizations or interest caucuses represented on 
the Negotiating Committee need to participate in 
each workgroup. The decision as to whether or not 
to participate is the prerogative of that 
organization or caucus. 



224 NEGOTIATING THE RULE 



Organizational Protocols for Tank Vessel Response Plans 



(2) Workgroups are not authorized to make decisions for 
the Conunlttee as a whole. Decisions to forward a 
report of a workgroup to the Negotiating Conunlttee 
shall be made with the concurrence of all workgroup 
members who are present at the meeting where the 
decision is made. 

(3) Workgroup meetings will be held between the full 
sessions and will be scheduled in the same location 
and time whenever possible. All Committee Members 
will be notified of all workgroup meetings. 

Discontinue if Unproductive. The Committee or the Coast 
Guard may discontinue negotiations at any time if they do 
not appear productive. 

Deadline for Negotiations. Negotiations concerning a 
Notice of Proposed Rulemaking will terminate by March 15, 
1992 unless the Committee decides to extend the deadline. 



4 . AGREEMENT 

a. Written Statement. Any agreement reached by the 
Committee on recommended regulations will take the form 
of a written statement that will be signed by all parties 
to the negotiations. 

b. Statement as Basis for NPRM. The Coast Guard agrees to 
use the written statement as the basis of a Notice of 
Proposed Rulemaking to the maximum extent possible 
consistent with the Agency's legal obligations. The 
Coast Guard will draft proposed regulations and preambles 
that have the same substance and effect as the written 
statement. If the Committee reaches an agreement on 
recommended proposed regulations after the Coast Guard 
has issued a Notice of Proposed Rulemaking, the Coast 
Guard will use that agreement as the basis of a notice to 
supplement the original proposal. 

c. Distribution of NPRM. The Coast Guard will send the 
members of the Committee copies of the proposed 
regulations and their preamble prior to the signature of 
the Commandant. The Coast Guard will consult with 
Committee members with respect to the draft regulations 
and preambles in an effort to address any concerns they 
may have. 

d. No Negative Comments. Each party agrees not to file 
negative comments on the proposed regulations or their 
preamble to the extent they have the same substance and 
effect as the written statement. 



OIL SPILL PROTOCOLS 225 



Organizational Protocols for Tank Vessel Response Plans 



e. Response to Public Comments. The Coast Guard will 
consider all relevant comments submitted concerning the 
Notice of Proposed Rulemaking and will make such 
modifications in the proposed regulations and their 
preamble as are necessary when issuing final regulations. 
After close of the comment period on the Notice of 
Proposed Rulemaking, the committee will reconvene as 
necessary to consider those comments for preparation of 
the final rule. 

f. No Adverse Action and Support. Each party other than the 
Coast Guard agrees not to take any action to inhibit the 
adoption of the recommended proposed regulations as final 
regulations to the extent the final regulations and their 
preamble have the same substance and effect as the 
written statement. If any person does anything to 
inhibit the adoption of final regulations that have the 
same substance and effect as the written statement, each 
party other than the Coast Guard agrees to submit 
comments to the Coast Guard and any other relevant 
Federal official stating that- 

(1) the party concurred in the written statement; 

(2) it supports the adoption of final regulations with 
the same substance and effect as the written 
statement; and 

(3) the position of the person seeking to inhibit the 
adoption of final regulations with the same 
substance and effect as the written statement should 
be rejected. 

g. Distribution of Draft Final Rule. The Coast Guard will 
send the members of the Committee copies of the final 
regulations and their preamble prior to the signature of 
the Commandant. The Coast Guard will consult with 
Committee members with respect to the draft final 
regulations and preamble in an effort to address any 
concerns they may have to the maximum extent consistent 
with applicable law. 

h. Final Rule. Recognizing that under the Appointments 

Clause of the Constitution governmental authority may be 
exercised only by officer of the United States and 
recognizing that it is the Coast Guard's sole 
responsibility to issue a final rule, the Coast Guard 
intends to issue final regulations that are based on the 
written agreement concurred in by the Committee as 
modified pursuant to Paragraph (e). 



226 NEGOTIATING THE RULE 



Organizational Protocols for Tank Vessel Response Plans 

i. No Challenge. Each party other than the Coast Guard 

agrees not to challenge the regulations in court to the 
extent that the final regulations and their ' preamble have 
the same substance and effect as the written statement. 

j . Hemo of Concurrence in Docket . Each party other than the 
Coast Guard agrees to submit a memorandum to the docket 
that it participated in the negotiations and that it 
concurred in the recommended proposed regulations when 
considered as a whole if- 

(1) adverse comments are filed with the agency or the 
regulations are challenged in court and 

( 2 ) the preambles and regulations have the same 
substance and effect as the written statement. 

k. State Governments. Each State member of the Negotiating 
Committee agrees to support rules for adoption at the 
State that are consistent with the written statement and 
the final regulations and their preamble to the extent 
the final regulations and their preamble have the same 
substance and effect as the written statement. 



FACILITATOR 

A neutral facilitator will work with all the parties to 
ensure that the process runs smoothly. The facilitator 
serves at the will of the Committee. 



MEETINGS 

a. FACA and NRA. The negotiations will be conducted under 
the Federal Advisory Committee Act (FACA) and the 
Negotiated Rulemaking Act of 1991 (NRA). 

b. Open Meetings. Negotiating sessions will be announced in 
the Federal Register prior to the meeting and, consistent 
with FACA requirements, will be open to the public. 

c. Minutes. The proceedings will not be electronically 
recorded, but draft minutes of Committee meetings will be 
prepared by the facilitator for the convenience of the 
members of the Committee. Such minutes shall not be 
approved by the Committee, or be construed or taken to 
represent the official position of the Committee or any 
member on what transpired at Committee meetings. 



OIL SPILL PROTOCOLS 227 



Organizational Protocols for Tank Vessel Response Plans 

d. Agendas. Meeting agendas will also be developed by 
consensus. 

e. Impasse. If a deadlock or Impasse is declared by any 
party, the facilitator will be available to help the 
deadlocked parties to try to resolve the Impasse. 

f. Caucus. Any party may declare a caucus at any time. The 
facilitator will be available to help In caucus 
activities. 



SAFEGUARDS FOR THE PARTIES 

a. Good Faith. All parties agree to act in good faith in 
all aspects of these negotiations. Specific offers, 
positions, or statements made during the negotiations may 
not be used by other parties for any purpose outside the 
negotiations or as a basis for future litigation. It is 
the intent of the Committee that other attendees of the 
Committee's meetings also voluntarily comply with this 
provision in order to support the regulatory negotiation 
process by encouraging the free and open exchange of 
ideas, views, and information prior to achieving 
consensus. Personal attacks and prejudiced statements 
will not be tolerated. 

b. Right to Withdraw. Any party may withdraw from the 
negotiations at any time without prejudice. The 
remaining Committee Members shall then decide whether to 
continue the necotiations. 

c. Others' Positions. No party will make public 
announcements or hold discussions with the press 
characterizing the position of any other party even If 
that party withdraws from the negotiations. 

d. Information. 

(1) All parties agree not to withhold relevant and non- 
proprietary Information, recognizing that 
competitive concerns may make disclosure of certain 
information unlawful or competitively sensitive. If 
a party believes it cannot or should not release 
such information, it will provide the substance of 
the information in some form ( such as by aggregating 
data, by deleting non-relevant confidential 
information, by providing summaries, or by 
furnishing it to a neutral consultant to use or 
abstract) or a general description of it and the 
reason for not providing it directly. 



228 NEGOTIATING THE RULE 



Organizational Protocols for Tank Vessel Response Plans 



(2) Parties will provide information called for by this 
paragraph as much in advance of the meeting at which 
such information is to be used as is reasonably 
convenient . 

(3) All parties agree not to divulge information that is 
not required to be included in the minutes and which 
is shared by others in confidence. 

( 4 ) Information and data provided to the Committee in 
writing is a matter of public record. 

( 5 ) Nothing contained in these protocols shall restrict 
the ability of any interest or member of the 
Committee to keep the Congress and other agencies of 
the Federal Government informed as to the substance 
and progress of the negotiations. 

Docket. Minutes of meetings and any other documents 
prepared or circulated in conjunction with the 
negotiation shall be placed in a public docket of the 
negotiations. 



CHAPTER 7 - CONCLUDING THE NEGOTIATIONS 



The negotiated rulemaking committee has finished its work 
when it reaches consensus on the issues under negotiation or when 
it decides that consensus cannot be reached on all or parts of the 
rule. In either event, the records kept of committee meetings 
should provide the agency with valuable information upon which to 
base the rule or its preamble. 

The Reg-Neg Act requires a committee that reaches consensus 
on a proposed rule to transmit to the agency a report containing the 
proposed rule. (5 U.S.C. §566(f)) The Act provides that a 
committee not reaching consensus on a rule may transmit a report 
specifying any areas of agreement. The committee may include in 
its report any other information, recommendations, or materials that 
it considers appropriate. The Act allows any member of the 
committee to include additional information, recommendations, or 
other materials as an addendum to the report. The committee must 
also submit to the agency the minutes and other records required by 
sections 10(b) and (c) of the Federal Advisory Committee Act. (5 
U.S.C. §566(g)) In general, committee records include documents 
that were prepared for or made available to the committee, but do 
not include personal notes and materials of the facilitator or 
members of the committee. (5 U.S.C. §566(d)(3)) 

The statutory language gives the committee and its members, 
including the agency, flexibility in deciding how to make best use of 
what has been achieved in the negotiations. For example, in some 
instances the committee may decide to submit to the agency ~ or the 
agency may require ~ a written summary of the results of the 
negotiations. Depending on the nature of any consensus that may 
be attained, the committee may transmit the agreements reached on 
each of the issues or it may be able to provide specific proposed 
language for the draft rule. The committee may prefer to have the 
members sign a statement agreeing not to oppose the rule, or they 
may decide that an oral agreement is all that is appropriate. The 
appendix includes examples of consensus statements issued by 
negotiating committees and examples of portions of Federal Register 
notices for proposed rules developed by regulatory negotiation. 

229 



d 




230 CONCLUDING THE NEGOTIATIONS 



If the committee is terminating its work without reaching 
consensus, it may wish to identify which issues (if any) it was able 
to resolve and which issues remained, a summary of the areas of 
disagreement, and the ranges of solutions discussed. Negotiations 
that do not end in consensus may nonetheless provide the agency 
with invaluable information about the parties and the issues, perhaps 
enabling the agency to propose a rule that is satisfactory to many of 
the parties. Agencies that have had negotiations end short of 
consensus have reported that the additional knowledge gained 
during the negotiations made the process worthwhile. 

What the agency does with the results of the committee's 
negotiations depends in part on what the agency promised at the 
beginning of the negotiations and on what the committee transmits 
to the agency. If the committee's consensus is in the form of a draft 
rule and the agency promised (as, for example, the Environmental 
Protection Agency has) to publish the text of the committee's draft 
rule as a proposed rule, then the draft will go through internal 
review and concurrence, and Office of Management and Budget 
concurrence if required, prior to publication in the Federal Register. 
If the committee's consensus is in the form of recommendations on 
the issues, then the agency rulemaking staff will draft the rule based 
on the recommendations and will follow normal agency internal and 
external review procedures. 

The agency, of course, always is responsible for ensuring that 
the rule is consistent with statutory requirements. Nothing the 
committee proposes can change the agency's statutory obligations. 
If, due to statutory requirements or as a result of internal agency 
review, significant changes are made to the rule prior to publication 
of the proposal, the committee members should be notified or 
briefed regarding the changes and the reasons for the changes. The 
Administrative Conference recommends also that the Federal 
Register notice make clear any departures in the text from the 
negotiated agreement. 

Negotiated rulemaking proposals are subject to public comment 
in accordance with the Administrative Procedure Act (see chapter 
3). The negotiating committee can either be disbanded at the 
conclusion of its formal negotiations (as is the practice of EPA), or 
it may continue to exist through the public comment period so that 
the agency can have the benefit of the committee's reactions to any 
comments received (the practice of the Department of 
Transportation). In the latter case, such consultations should take 
place in public (see chapter 3). The Reg-Neg Act allows the agency 
and the committee to decide when to terminate the committee. 



CONCLUDING THE NEGOTIATIONS 231 



provided termination is no later than promulgation of the final rule 
under consideration. (5 U.S.C. §567) 

Neil Eisner, Assistant General Counsel for Regulation and 
Enforcement at the Department of Transportation, has explained the 
Department's procedure as follows: 

[T]here is a strong argument for making it clear that the 
committee's work is not considered completed until it has 
made a recommendation on the final rule. We have found 
that it is easy for many people to sit around the table and 
make recommendations for a notice of proposed 
rulemaking, because it will then be subject to comment . . 
. . Having to 'bite the bullet' and make recommendations 
for a final rule, based on public comment, is a much more 
difficult task, which is, I believe, one of the primary 
objectives of regulatory negotiation. 

(Letter to the Administrative Conference, 
Oct. 31, 1988) 

The Administrative Conference has recommended that 
negotiations can be useful even after publication of a proposed rule. 
(See Recommendation 82-4, par. 13, 14; and Recommendation 
85-5, par. 3. Both recommendations are reprinted in the appendix 
to chapter 1.) Nevertheless, the Conference endorses the idea that 
agencies should adapt the general framework of negotiated 
rulemaking to their own circumstances, and would not disagree with 
an agency that chooses to vary the procedure. (See the preamble to 
Recommendation 85-5.) In any event, members of the committee 
should be kept informed of the progress of the proposal. They 
should receive notice of publication, a summary of public 
comments, and notice when the final rule is published. 



Evaluation of the Rulemaking Effort 

The agency may find it useful for agency staff, the facilitator, 
or another external neutral party to assess the effectiveness of the 
negotiated rulemaking proceeding. The assessment may include an 
evaluation of how well the reg-neg fulfilled the goals of the agency 
and the other participants, the degree of satisfaction among 
participants and agency management, the volume and tenor of 
public comment, and subsequent litigation if any. Documentation 
of lessons learned about what issues are negotiable, how much 
preparation must precede the negotiation, and what resources were 
needed to conduct the negotiation can be valuable aids for future 
negotiated rulemaking proceedings. The appendix to chapter 1 



B 



D 



232 CONCLUDING THE NEGOTIATIONS 



includes an evaluation of EPA's reg-neg experience by EPA's 
Office of Policy, Planning and Evaluation. Chapter 13 contains an 
assessment by Professor Henry H. Perritt, Jr., of the Occupational 
Safety and Health Administration's negotiated rulemaking on 
exposure to the chemical MDA. In 1995, at the request of EPA, 
the Administrative Conference undertook an evaluation of EPA's 
overall negotiated rulemaking experience. (At the time of 
publication in mid- 1995, the study was still in progress.) 

The Administrative Conference encourages agencies that 
conduct negotiated rulemaking to share their assessments and the 
lessons learned with other agencies. The Conference functions as a 
clearinghouse for information about administrative procedures, and 
agencies should submit such data to the Conference's Office of the 
Chairman. (5 U.S.C. §569) A comprehensive report on federal 
agency experience under the Reg-Neg Act was prepared by the 
Conference in 1995 for submission to Congress. 



A ppendix 

The appendix contains a variety of documents that illustrate 
forms of committee consensus agreements and agency Federal 
Register notices subsequent to the conclusion of negotiations. 

The first three items are from EPA's woodburning stove reg- 
neg. The "notice of results of rulemaking negotiation" summarizes 
the consensus reached by the committee. It is somewhat unusual for 
an agency to publish such a notice in advance of a notice of 
proposed rulemaking (NPRM). (For another example, see OSHA's 
publication of advisory committee recommendations on the chemical 
MDA, 52 Fed. Reg. 26776, July 16, 1987.) In this instance, the 
notice was published primarily to inform manufacturers and dealers 
of the consensus to aid them in planning for design and marketing 
of stoves. The appendix contains a copy of the consensus 
agreement, which was signed by each of the parties to the 
negotiation. Excerpts from the NPRM are also reprinted. 

The Federal Aviation Administration's NPRM on flight time 
limitations and its notice of a negotiating committee meeting 
subsequent to the comment period reflect a different procedure at 
the conclusion of negotiations. Unlike EPA, FAA chose to 
reconvene the committee in a public session to review the comments 
received by the agency. (See chapter 3 for a discussion of ex parte 
concerns.) 



^ 



CONCLUDING THE NEGOTIATIONS 233 



Also in the appendix is a letter from the mediators in OSHA's 
benzene proceeding summarizing the results of the negotiations. 
Finally, the appendix contains the report of the facilitator and 
excerpts from the committee's statement (agreed to by all but one of 
the participants) in EPA's RCRA permit modification reg-neg. 



■ 



234 



CONCLUDING THE NEGOTIATIONS 



51 Fed. Reg. 34672 (Sept. 30. 1986) 



40 CFR Part 60 
[AO-FRL-3088-21 



D 



standards of Performance For New 
Stationary Sources; Residential Wood 
Heaters 

agency: Environmental Protection 
Agency (EPA). 

action: Notice of results of rulemaking 
negotiation. 

summary: On August 2. 1985. (SO FR 
31504). the EPA announced that it 
planned to develop new source 
performance standards (NSPS) for 
residential wood combustion devices 
(wood heaters). On March 10. 1986 (51 
FR 8241). the Agency announced the 
formation of an advisory committee, 
under the Federal Advisory Committee 
Act. to negotiate the issues associated 
with the development of this proposed 
standard. The committee has agreed in 
principle to the provisions of the 
regulation. This announcement 
summarizes these agreements. Parties 
affected by this rulemaking, primarily 
manufacturers of and dealers in wood 
heaters, may use information in this 
notice to complete planning for the 
design and marketing of clean-burning 
wood heaters. EPA plans to propose the 
regulation in January 1987 and 
promulgate a fmal standard in January 
1988. 

ADDRESS: Docket. A docket, number A- 
p84-49. containing information 
considered by EPA in development of 
the proposed standards, is available for 
public inspection between 8:00 a.m. and 
4:00 p.m.. Monday through Friday, at 
EPA's Central Docket Section (LE-131). 
West Tower Lobby. Gallery 1. 401 M 
Street SW.. Washington. DC 20460. EPA 
may charge a reasonable fee for 
copying. 

FOR FURTHER INFORMATION CONTACT: 

Rick Colyer. Standards Development 
Branch, telephone number (919) 541- 
5578: or Jeff Telander. Industrial Studies 
Branch. (919) 541-5595. The address for 
both is: Emission Standards and 
Engineering Division (MD-13). U.S. 



Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The EPA estimates that over 12 
million wood heaters were in use in 
1986. As referred to here, wood heaters 
are closed-chambered, combustion air 
controlled appliances, such as 
freestanding woodstoves fireplace 
inserts, and wood burning cookstoves. 
The EPA estimates that sales of wood 
heaters are approximately 800.000 units 
per year. 

The proposed regulation would set 
emission limits for particulate matter 
(PM) only. However, techniques which 
control PM, such as catalysis or 
secondary combustion, also reduce 
other pollutants found in wood smoke, 
such as carbon monoxide (CO), 
hydrocarbons, and polycyclic organic 
matter. The EPA projects substantial air 
quality benefits form the regulation of 
wood heaters. In the absence of a 
regulation. EPA estimates that PM 
emissions from new wood heaters 
would increase at a rate of about 110.000 
megagrams (121.000 tons) per year. With 
controls, the estimated annual 
nationwide PM emissions would 
increase by approximately 31,000 
megagrams (34.000 tons) per year, a 
reduction of more than 70 percent. These 
estimates are based upon assumptions 
regarding catalyst and noncatalyst 
emission control degradation as well as 
consumer behavior regarding proper 
operation and maintenance. 

Wood heaters create significant air 
quality problems in localities where they 
are used in large numbers. Emissions 
from wood heaters are a growing 
problem throughout all areas of the 
country where wood supplies are 
abundant. In fact, several areas 
currently violate national health 
standards for PM and CO due, in part, to 
residential wood heaters. 

During the past few years, several 
state and local governments have 
developed regulations controlling, and 
in some instances temporarily banning. 



WOOD STOVE NOTICE OF RESULTS 



235 



wood heaters. On July 1. 1986, Oregon 
regulations went into effect prohibiting 
the sale of new wood heaters that are 
not state-certified. Similar regulations 
will go into effect in Colorado on 
January 1, 1987. Several local ordinances 
have been passed, mostly in the Rocky 
Mountains, to control or ban 
woodburing. Several other states are 
awaiting the development of a federal 

34673 

NSPS before deciding whether to 
regulate on their own. 

The development of a federal NSPS 
for wood heaters began in 1985 as a 
response to the growing concern that 
wood smoke contributes to ambient air 
quality health problems. The Agency 
has agreed to conduct a wood heater 
NSPS rulemaking with a proposed 
decision by January 31, 1987, and a final 
decision by January 31, 1988. New York 
V. Thomas. No. 84-1472, etc (D.C. Cir.) 
(Settlement Agreement of May 9, 1986J. 

After gauging the interest of the 
various parties in the development of 
this standard — the wood heating 
industry, state governments, 
environmental and consumer groups— 
EPA established a negotiating 
committee (under the Federal Advisory 
Committee Act) to negotiate the 
provisions of the standard. Appendix A 
of this notice identifies members of the 
negotiating committee. The Agency 
believes that the regulatory negotiation 
will reduce the time required to propose 
and promulgate this standard, will 
improve the quality of the regulation, 
and, by building consensus among 
parties at interest, will avoid litigation 
or delays. 

Beginning on March 19, 1986, the 
regulatory negotiation committee met 
six times on a monthly basis to discuss 
and reach agreements on a variety of 
technical and policy issues associated 
with the development of the standard. 
At the final meeting of the committee on 
August 21, the committee reached 
agreement in principle on all major 
provisions of the standard. Formal 
ratification of the agreement is expected 
in the near future. 



This notice describes the results of the 
negotiations and summarizes all of the 
major provisions of the negotiated 
agreement This notice satisfies a 
commitment by the EPA to the 
negotiating committee to publish a 
description of the regulation as soon as 
possible after the completion of the 
negotiations. The purpose of this notice 
is to inform wood heater manufacturers 
and others affected (e.g., testing 
laboratories, dealers, catalyst 
manufacturers, and state and local 
governments) of the major requirements 
in the negotiated agreement — 
particularly what the standards would 
be, and when and to whom they would 
apply, if promulgated. 

The Agency will formally propose the 
negotiated standard in January 1987. 
including a preamble that explains the 
proposed rule and its rationale, and 
satisfies the various administrative 
requirements associated with 
rulemaking. 

The following section provides an 
overview of the key provisions of the 
standard that will be proposed. 
Appendix B contains two charts to help 
manufacturers determine whether they 
would be subject to the regulation and 
when and how they would be required 
to comply. 

II. Overview 

In summary, the agreement would 
require manufacturers to certify each 
model line on the basis of tests 
conducted by an accredited laboratory 
on a representative wood heater. After 
July 1, 1988, unless otherwise exempted, 
all wood heaters produced would have 
to meet the Phase I emission limits and 
comply with temporary and permanent 
labeling requirements. More stringent 
emission limits would take effect on July 
1, 1990 (Phase II). The program would be 
enforced through parameter inspections 
(to ensure that production line units 
conform to the appliance submitted for 
certification) and emission test audits. 

Following is a section-by-section 
summary of the negotiated agreement. 



B 



236 



CONCLUDING THE NEGOTIATIONS 



B 



A. Summary of Negotiated Rule 

Applicability 

The rule would apply to all wood 
heaters manufactured or imported after 
July 1, 1988, and sold at retail after ]uiy 
1, 1990. There would be several 
exemptions. 

• Upon written request by the 
manufacturer, Oregon-certified 
applifinces that meet certain criteria 
would be certified by EPA as being in 
compliance with the first phase of the 
standard. The primary criterion would 
be that the certification test included at 
least one test run at a bum rate less 
than 1.25 kg/hr. 

• In the first year of the program (July 
1, 1988, through June 30, 1989) small 
manufacturers would be allowed to 
produce a number of uncertified wood 
heaters equal to or fewer than the 
number they produced in the previous 12 
months (base year). For this exemption, 
a small manufacturer is defined as one 
who produced fewer than 2000 wood 
heaters in the base year (July 1, 1987. 
through June 30, 1988). Records would 
have to be maintained by the 
manufacturer for this period to apply for 
this exemption. 

• Appliances that are exported would 
not have to meet the standard. 

• For each model line, up to 50 non- 
certified units could be produced for 
research and development purposes. 

Definition 

"Wood heater" is the term used in this 
standard for the type of woodbuming 
appliances covered by the standard. 
"Wood heater" is defined as an 
enclosed, woodbuming appliance 
capable of and intended for space 
heating, domestic water heating, or 
indoor cocking, that meets all of the 
following criteria: 

l.-An air-to-fuel ratio in the 
combustion chamber averaging less than 
35-to-l as determined by the test 
procedure prescribed in the rule; 

2. A usable firebox volume of less 
than 20 cubic feet; 

3. A minimum bum rate less than 5 
kg/hr; and 



4. A maximum weight of 1000 kg. 

This definition would include all non- 
industrial indoor woodbuming 
appliances except furnaces, boilers, and 
fireplaces. Coalbuming heaters would 
be covered unless they met certain 
design criteria and were prominently 
labeled for coal use only. 

Emission Limits and Compliance Dates 

The rule would have two phases: 
wood heaters manufactured after July 1. 
1988, or sold at retail after July 1, 1990, 
would have to meet certain particulate 
matter emission standards (Phase I); and 
wood heaters manufactured after July 1. 
1990, or sold at retail after July 1. 1992. 
would have to meet more stringent 
particulate matter emission standards 
(Phase II). At each phase there would be 
an emission limit for catalytic wood 
heaters and another for noncatalytic 
wood heaters. The particulate matter 
emission limits would be as follows: 



CaUlyttc 

Noncatalytic.. 



PrwM I Pu>y 1, 

19e8-June 30. 

1990) 



5.5 gcamt/hour.. 
8.5 gramt/hour.. 



PtiaM II (tjeotfvMng 
July 1. 1990) 



4 1 grams/hou'. 
7 5 grams/hour 



The particulate matter emissions from 
a particular wood heater would be 
measured during an emission test 
consisting of four test runs at prescribed 
burn rates. The average emissions at the 
four bum rates would be calculated 
using a formula which would give higher 
weight to emissions at the lower bum 
rates. 

Emissions at lower bum rates are 
given more weight in the formula 
because consumers tend to operate 
wood heaters at the lower burn rates 
more than at the higher burn rates. To 
pass the emissions test, a wood heater's 
calculated average emissions would 
have to be equal to or less than the 
applicable emission limit. 

The NSPS 1988 particulate emission 
limits would be approximately 
equivalent to the Oregon 1988 emission 
limits. Because the emissions weighting 



WOOD STOVE NOTICE OF RESULTS 



237 



34674 

formula used in the NSPS standard is 
different from the weighting formula in 
the Oregon standard, the numerical 
expressions of the standard are 
different. 

The Phase II emission limits would be 
approximately 15 to 25 percent more 
stringent than the 1988 standards for 
noncatalyst and catalyst wood heaters, 
respectively. The 1990 standards would 
also include a emission cap. A cap is a 
maximum allowable emission limit for 
any bum rate. It is designed to ensure 
that the appliance burns cleanly across 
the range of bum rates. 

The 1990 cap for catalyst wood 
heaters is a function of burn rate and is 
calculated by the following: 

For bum rates <2.82 kg/hr. 

Cap =3.55 g/k X (burn rate) + 4.98 g/hr 
Fur burn rates >2.82 kg/hr. 

Cap =15 g/hr. 

The 1990 cap for noncatalyst wood 
heaters is 15 g/hr for burn rates less 
than or equal to 1.5 kg/hr and 18 g/hr for 
burn rates greater than 1.5 kg/hr. 

Test Methods and Procedures 

Any of the following particulate 
measuring methods would be permitted: 
EPA versions of the proposed ASTM 
Method, Oregon Method 7 in the stack, 
and Oregon Method 7 in a dilution 
tunnel. The method would specify how 
to test the appliance, including the 
loading and arrangement of fire wood, 
the selection of bum rates, the method 
for averaging individual test runs, and 
the treatment of outlying data points. 
Certification tests would have to include 
one run at or below a burn rate of 1.25 
kg/hr and 1.0 kg/hr for the 1988 and 1990 
standards, respectively. 

Certification and Compliance 

This standard would contain a 
certification program similar to that 
used in EPA's motor vehicle emission 
control program. A prototype, or 
production unit, that is representative of 
all others within a model line would be 
tested by an EPA-accredited testing 
laboratory. If the test results indicate 
that the unit meets the applicable 



emission limits, EPA would issue a 
certificate covering the entire model line 
to the manufacturer, who may then sell 
all units in that model line as long as 
that certificate is in effect. 

In addition to the test results, the 
manufacturer would be required to 
submit an application that includes 
certain descriptive data. If the appliance 
is equipped with a catalyst, the catalyst 
would have to be warranted in full for at 
least two years and, beginning July 1. 
1990. for at least three years for thermal 
degradation. Also, the catalyst would 
have to be easily accessible for 
inspection and replacement. 

EPA would allow an alternative 
certification procedure for 
manufacturers who may be unable to 
obtain certification as a result of a 
projected six-month delay in getting the 
appliance tested at accredited 
laboratories and getting the application 
processed by EPA. 

Manufacturers would also be required 
to conduct quality assurance (QA) 
programs consisting of parameter 
inspections and emission tests. For 
every 150 wood heaters produced, the 
manufacturer would be required to 
inspect at least one wood heater to 
ensure that dimensions of certain 
components fall within specified 
tolerances. Also, the manufacturer 
would be required to conduct emission 
tests on production units at a frequency 
that depends upon the number of units 
produced and the original certification 
test results. The manufacturer would not 
be required to report the results of the 
QA programs to EPA, but would have to 
maintain these records. 

Test results could be corrected for 
altitude in the cases of alternative 
certification and QA programs. A 
formula will be provided to calculate the 
appropriate correction. 

A firm manufacturing appliances 
similar in all material respects to. 
appliances manufactured by another 
firm that has already certified the design 
could obtain a certificate without 
retesting. Unless revoked, certificates 
issued to wood heaters meeting the 1988 
standards would be good until 1990, and 
certificates issued to wood heaters 
meeting the 1990 standards would be 




238 



CONCLUDING THE NEGOTIATIONS 



B 



good for five years. A manufacturer 
would have to retest and recertify a 
model line if he makes physical changes 
to the design that are presumed to affect 
emissions. 

Certain conditions, such as an 
enforcement or compliance audit failure, 
could result in the suspension or 
revocation of the certificate. Audits 
would consist of two elements: 
parameter inspections and emission 
testing. These audits would be 
performed on production units prior to 
retail sale. EPA would conduct both 
random and selective enforcement audit 
testing programs. The rule will provide 
for notification and hearing procedures 
when EPA is considering suspending or 
revoking a certificate. 

Laboratory Accreditation 

To be accredited by EPA. a testing 
laboratory would have to first be 
accredited by the National Voluntary 
Laboratory Accreditation program, 
demonstrate proficiency in testing by 
participating in an annual round robin, 
be free of conflict of interest regarding 
the testing results, and agree to establish 
an escrow account and pay into it funds 
sufficient for one audit test for every 
five certification tests conducted by the 
laboratory. Laboratories accredited by 
Oregon may be grandfathered, provided 
that they participate in the annual round 
robin testing and establish an escrow 
account. The funds in the escrow 
account would be used to audit wood 
heaters certified to meet the 1990 (Phase 
II] standard. 

Labeling and Owner's Manual 

All appliances subject to the standard 
and offered for sale would be required 
to display both a temporary label and a 
permanent label. The label contents, 
location, size, and materials will be 
specified. In general, the temporary 
label is designed to help the prospective 
purchaser select an appliance by 
providing information on relative 
pollution output, efficiency, and heat 
output. The permanent label would 
contain information relevant to EPA 
enforcement. Manufacturers would be 
required to provide operation and 



maintenance information necessary for 
good emissions control in the owner's 
manual that accompanies the appliance. 

Recordkeeping and Reporting 

Manufacturers would be required to 
maintain records of certification testing 
data, QA program results, production 
volumes, names and addresses of 
purchasers, and information needed to 
support a request for a waiver or 
exemption. Accredited laboratories 
would have to keep testing records and 
report periodically to EPA certain 
information required under logjam 
provisions. Retailers would have to 
maintain names and addresses of 
purchasers. All records would have to 
be retained for at least five years. 

List of Subjects in 40 CFR Part 60 

Air pollution control, 
Intergovernmental relations. Reporting 
and recordkeeping requirements. 
Incorporation by reference. Wood 
heatefs (SIC Code 3433). 

Dated: September 24, 1986. 
|. Craig Potter. 

Assistant Administrator for Air and 
Radiation. 

Appendix A— Regulatory Negotiation 
Participant List 

Negotiatiors/AffHiation 

1. Robert Ajax, U.S. EPA 

2. William Becker. STAPPA/ALAPCO 

3. Larry Canaday. Woodcutters Mfg. 

4. juhn Charles, Oregon Environmental 
Council 

5. Donnis Corn, a-b Fabricators, Inc. 

6. David Doniger, Natural Resources Defense 
Council, Inc. 

7. Harold Garabedian, Vermont Air Pollution 
Control Program 

8. Robert Ceiter, Applied Ceramics 

9. R. D. Cros Jean, Coming Glass Works 

10. Brad HoUman. New York State Energy 
Research and Develo'pment Authority and 
New York State Energy Office 

11. Jim King. Colorado Department of Health 

12. John Kowalczyk, Oregon Department of 
Environmental Quality 

13. Neil Martin, Bnigger Exports, Ltd. 

14. David Menotti. Wood Heating Alliance 

15. Jay W. Shelton, Shelton Research, Inc. 

16. David Swankin. Consumer Federation of 
America 



WOOD STOVE NOTICE OF RESULTS 239 



34675 



Facilitator 

Phil Harter, Esq.. Consultant to EPA 

Executive Secretary 

Chris Kirtz. U.S. EPA 

Observers 

Wayne Leiss, Office of Management and 

Budget 
George ). Lippert, U.S. Forest Service 
Jean Vemet. U.S. Department of Energy 

BILUNO CODE CMO-SO-M 




■ 



240 CONCLUDING THE NEGOTIATIONS 



November 7, 1986 



ENVIRONME3JTAI. PROTECTIOM AGENCY 

lilEGOTIATING COMMITTEE 

FOR 

NEW SOURCE PERFORMANCE STANDARD FOR RESIDENTIAL WOOD HEATERS 



AGREEMENT 

The Negotiating Conunittee considered the technical and pol- 
icy issues involved in a new source performance standard for 
residential wood heaters and has reached a consensus on a recom- 
mended proposed rule. 

U.S. Environmental Protection Agency , a party to the negotiations, 
agrees that : 

1. The person signing this document is authorized to commit the 
organization to the terms of the agreement. 

2. It concurs in the recommended proposed rule entitled "Recom- 
mended Proposed Rules — Residential Wood Heater NSPS" that 
is dated "10/24/86" and that is attached to this agreement 
when considered as a whole. 

3. a. EPA agrees to draft a preamble consistent with the recom- 

mended proposed rule and to publish that preamble and the 
recommended proposed rule as a Notice of Proposed Rule- 
making for a New Source Performance Standard for Residen- 
tial Wood Heaters. 

b. If the proposed rule and its preamble are consistent with 
the recommended proposed rule, each other party agrees 
not to file negative comments in response to the Notice 
of Proposed Rulemaking and to file a memorandum in the 
docket that it participated in the negotiations and that 
it concurred in the recommended proposed rule when con- 
sidered as a whole. 

4. a. EPA will consider all relevant comments submitted in 
response to the Notice of Proposed Rulemaking and will 
make such modifications in the proposal as are necessary 
when issuing a final rule. 

b. Each other party agrees not take any action to inhibit 
the adoption of the recommended proposed rule as a final 
rule . 

5. Each party other than EPA agrees not to challenge the final 
rule in court if the final rule and its preamble are consis- 
tent with the recommended proposed rule. 



WOOD STOVE AGREEMENT 241 



6. If the final rule is challenged in court and if the preamble 
and final rule are consistent with the recommended proposed 
rule, then each party other than EPA agrees to file a memo- 
randum informing the court that it participated in the nego- 
tiations and that it concurred in the recommended proposed 
rule when considered as a whole. 

7. This agreement takes effect when all members of the Negoti- 
ating Committee have signed it. 



Robert L. Ajax 



Individual Committee Member 
U.S. EPA 



Organization 

November 13, 1986 
Date 



242 



CONCLUDING THE NEGOTIATIONS 



52 Fed. Reg. 4994 (Feb. 18, 1987) 



ENVIRONMENTAL PROTECTION 
AGENCY 

40 CFR Part 60 
[AD-FRL-3138^7(b)] 

Standards of Performance for New 
Stationary Sources; Standards of 
Performance for New Sources; 
Residential Wood Heaters 

AGENCV: Environmental Protection 
Agency (EPA). 

action: Proposed rule and notice of 
public hearing. 

summary: The proposed standards 
would limit particulate matter (PM) 
emissions from new residential wood 
heaters. The proposed standards were 
developed through the process of 
regulatory negotiation. They implement 
Section 111 of the Clean Air Act and are 
based upon the Administrator's 
determination that wood heaters cause, 
or contribute significantly to, air 
pollution which may reasonably be 
anticipated to endanger public health or 
welfare. The proposed standards would 
require wood heaters manufactured on 
or after July 1, 1988, be capable of 
reducing emissions to the level 
achievable by the best demonstrated 
system of continuous emission 
reduction, considering costs, nonair 
quality health and environmental 
impacts, and energy requirements. 

If requested, a public hearing will be 
held to provide interested parties an 
opportunity for oral presentations of 
data, views, or arguments concerning 
the proposed standards. 
dates: Comments. Comments must be 
received on or before April 20, 1987. 

Public Hearing. If anyone contacts 
EPA requesting to speak at a public 
hearing by March 11, 1987, a public 
hearing will be held on April 6, 1987, 
beginning at 10:00 a.m. Persons 
interested in attending the hearing 
should call Ms. Aim Eleanor at the 
phone number listed under For Further 
Information Contact to verify that a 
hearing will be held. 



Request to Speak at Public Hearing. 
Persons wishing to present oral 
testimony must contact EPA by March 
11, 1987. 

ADDRESSES: Comments. Comments 
should be submitted (in duplicate if 
possible) to: Central Docket Section 
(LE-131), AttenUon Docket Number A- 
84-49, U.S. Environmental Protection 
Agency, 401 M Street SW., Washington. 
DC 20460. 

Public Hearing. If anyone contacts 
EPA requesting a public hearing, it will 
be held at EPA's Office of 
Administration Auditorium, Research 
Triangle Park. North Carolina. Persons 
interested in attending the hearing or 
wishing to present oral testimony should 
notify Ms. Ann Eleanor, Standards 
Development Branch (MD-13). U. S. 
Environmental Protection Agency, 
Research Triangle Park, North Carolina 
27711. at the phone number listed under 

FOR FURTHER INFORMATION CONTACT. 

Docket. Docket No. A-84-49. 
containing supporting information used 
in developing the proposed standards, is 
available for public inspection and 
copying between 8:00 a.m. and 4:00 p.m.. 
Monday through Friday, at EPA's 
Central Docket Section, West Tower 
Lobby. Gallery 1, Waterside Mall, 401 M 
Street SW.. Washington, DC 20460. A 
reasonable fee may be charged for 
copying. 

FOR FURTHER INFORMATION CONTACT: 
For questions concerning regulatory 
aspects of the standards, please contact 
Rick Colyer, Standards Development 
Branch, telephone number (919) 541- 
5578. For questions concerning technical 
aspects of the standards, please contact 
Jeff Telander, Industrial Studies Branch. 
(919) 541-5595. For questions concerning 
test methods and laboratory 
accreditation, please contact George 
Walsh, Emission Measurement Branch, 
(919) 541-5543. The address for each is: 
Emission Standards and Engineering 
Division (MD-13), U. S. Environmental 
Protection Agency, Research Triangle 
Park, North Carolina 27711. For 
questions concerning wood heater 
certification and enforcement, please 



WOOD STOVE NPRM 



243 



contact Doreen Cantor, (202) 382-2874, 
at the following address: Stationary 
Source Compliance Division (EN-341], 
U.S. Environmental Protection Agency, 
401 M Street SW., Washington, DC 
20460. 

Persons interested in attending the 
public hearing or persons wishing to 
present oral testimony must notify Ms. 
Ann Eleanor at (919) 541-5578. 
SUPPLEMENTARY INFORMATION: 

I. Introduction 

A. New Source Performance 
Standards— General 

New Source Performance Standards 
(NSPS or "standards") implement 
Section 111 of the Clean Air Act. NSPS 
are issued for categories of sources 
which cause, or contribute significantly 
to, air pollution which may reasonably 
be anticipated to endanger public health 
or welfare. They apply to new 
stationary sources of emissions, i.e., 
sources whose construction, 
reconstruction, or modifica'tion begins 
after the applicability date of the 
standard. 

An NSPS requires these sources to 
control emissions to the level achievable 
by "best demonstrated technology." or 
"BDT," which is defined in item B.3 
below. 

B. Typical NSPS Decision Scheme 

An NSPS is the product of a series of 
decisions related to certain key 
elements for the source category being 
considered for regulation. The elements 
identified in this "decision scheme" are 
generally the following: 

1. Source category to be regulated — 
usually an entire industry but can be a 
process or group of processes within an 
industry. 

2. Pollutant(3) to be regulated — the 
particular substance(s) emitted by the 
source that the standard will control. 

3. Best demonstrated technology — the 
technology on which the Agency will 
base the standards, i.e., 

* * * the best technological system of 
continuous emission reduction which (taking 
into consideration the cost of achieving such 
emission reduction, and any nonair quality 
health and environmental impact and energy 



requirements) the Administrator determines 
has been adequately demonstrated. [Section 
lll(a)(l)l 

For convenience, this will be referred 
to as "best demonstrated technology" or 
"BDT." 

4. Affected facility — the pieces or 
groups of equipment that comprise the 
sources to which the standards will 
apply. 

5. Format for the standards — the form 
in which the standards are expressed, 
e.g., as a percent reduction in emissions, 
as a pollutant concentration, or as an 
equipment standard. 

6. Actual standards — based on what 
BDT can achieve, the maximum 
permissible emissions. (Note. — In 
general, standards do not require that a 
specific technology be used to achieve 
them. The source owner/operator may 
select the method for achieving the 
pollution control required.) 

7. Other considerations — In addition, 
NSPS often include: modification/ 
reconstruction considerations, 
monitoring requirements, performance 
test methods, and reporting and 
recordkeeping requirements. 

C. Overview of This Preamble This 
preamble will: 

1. Discuss the aspects of this NSPS 
that set it apart from other NSPS. 

2. Summarize the important features 
of this NSPS by discussing the 
conclusions reached with respect to the 
decision scheme. 

3. Describe the environmental, energy, 
and economic impacts of this NSPS. 

4995 

4. Describe the background to this 
standard. 

5. Present a rationale for each of the 
decisions in the decision scheme and 
provisions of the standard. 

6. Discuss administrative 
requirements relevant to this action. 

D. Unique Aspects of This NSPS 

Two factors make this NSPS unique. 
First, the source category to be 
regulated, residential wood-fired 
heaters, are mass-produced consumer 
items, rather than industrial processes 



244 



CONCLUDING THE NEGOTIATIONS 



typically regulated by an NSPS. Because 
wood heaters are mass-produced 
consumer items, a compliance scheme 
requiring that each facility be tested 
would be very costly. (The cost of a test 
series is several times the cost of a 
typical wood heater). Therefore, this 
standard permits the manufacturers of 
wood heaters to avoid having each unit 
tested by allowing, as an alternative, a 
certification program whereby 
representative wood heaters are tested. 
If the representative wood heater meets 
the applicable emission limits, EPA 
would certify the entire model line. 
Individual wood heaters within the 
model line would be subject to labeling 
and operational requirements. 
Manufacturers would then be required 
to conduct a quality assurance program 
to ensure that appliances produced 
within a model line conformed to the 
certified design, and met applicable 
emission limits. EPA also would conduct 
audits to ensure compliance. 

The second unique aspect of this 
standard is the means by which it was 
developed. This NSPS was developed 
through the process of regulatory 
negotiation, an alternative process for 
developing regulations in which 
individuals and groups with negotiable 
interests directly affected by the 
standard work with EPA in a 
cooperative venture to develop a 
standard by committee agreement. The 
rule, as presented in this proposal, 
reflects a consensus of representatives 
of the wood heater industry, the 
environmental community, consumer 
groups, state air pollution control and 
energy agencies, and the EPA. 

It is important to note, however, that 
the parties to the negotiation concurred 
with the regulation, when considered as 
a whole. Inevitably in any negotiation, 
this means that some parties may have 
made concessions in one area, in 
exchange for concessions from other 
parties in other areas. As a result, it is 
difficult to assess how changes in 
particular parts of the proposed rule 
would affect the consensus. 

Members of the negotiation committee 
and their affiliation are as follows: 



Negotiators/ Afniiation 

1. Robert Ajax. U.S. EPA 

2. William Becker. STAPPA/ALAPCO 

3. Larry Canaday. Woodcutters Mfg. 

4. John Charles, Oregon Environmental 
Council 

5. Donnis Corn, a-b Fabricators. Inc. 

6. David Doniger. Natural Resources Defense 
Council. Inc. 

7. Harold Garabedian, Vermont Air Pollution 
Control Program 

8. Robert Geiler, Applied Ceramics 

9. R.D. Gros jean, Corning Glass Works 

10. Brad HoUoman. New York Slate Energy 
Research & Development Authority and 
New York State Energy Office 

11. jim King. Colorado Department of Health 

12. John Kowalczyk. Oregon Department of 
Environmental Quality 

13. Neil Martin. Brugger Exports. Ltd. 

14. David Menotti, Wood Heating Alliance 

15. jay W. Shelfon, Shelton Research, Inc. 

16. David Swankin, Consumer Federation of 
America 

Facilitator 

Phil Harter. Esq.. Consultant to EPA 

Executive Secretary 

Chris Kirtz. U.S. EPA 

Observers 

Wayne Leiss. Office of Management and 

Budget 
George j. Lippert, U.S. Forest Service 
Jean VemeU U.S. Department of Energy 

II. Summary of the NSPS 

A. Source Category To Be Regulated 

This NSPS would regulate new 
residential wood heaters. 

B. Pollutant To Be Regulated 

This NSPS would regulate particulate 
matter (PM). 

C. Affected Facility 

A "wood heater" would be defined as 
an enclosed, woodbuming appliance 
used for space heating, domestic water 
heating, or indoor cooking that meets all 
of the following criteria: 

1. An air-to-fuel ratio averaging less 
than 35-to-l. 

2. Firebox volume less than 20 cubic 
feet. 



■ 



WOOD STOVE NPRM 



245 



3. Minimum burn rate less than 5 kg/ 
hr, and 

4. Maximum weight of less than 800 
kg. 

The regulation explicitly excludes 
furnaces, boilers, and open Hreplaces. 

D. Best Demonstrated Technology 

Two technologies are BDT for this 
source category: Catalytic technology 
and low-emitting noncatalytic 
technology. 

E. Format for the Standards 

The emission limit would be 
expressed in grams of PM per hour (g/ 
hr). 

F^Eipissio/t Limits and Compliance 
Dates 

The rule would have two phases: 
wood heaters manufactured on or after 
July 1, 1988, or sold at retail on or after 
July 1, 1990, would have to meet certain 
particulate matter emission standards 
(Phase I); wood heaters manufactured 
on or after July 1, 1990. or sold at retail 
on or after July 1, 1992, would have to 
meet more stringent particulate matter 
emission standards (Phase II). For each 
phase there would be separate emission 
limits for catalytic wood heaters and for 
noncatalytic wood heaters as specified 
in Table 1. 



TABtE 1.— Wood Heater Emission Limits 




Phase 1 (July 1. 

1968-Juno30. 

1990) 


Phas«ll 

(beginning July 1. 

1990) 


Catalytic _ 

Noncatalytic.^ 


5.5 grams/hour 

8.S grams/ hou 


4.1 gfams/hour. 
7.5 grants/ttour. 



The Phase I emission limits are about 
the same as the 1988 emission limits in 
Oregon. Because the emission weighting 
formula used in this standard is different 
from the weighting formula in the 
Oregon standard, the numerical 
expression of the standard is different. 
For perspective, the numerical value of 
the Phase II emission limits are about 15 
and 25 percent lower than the 1988 
Oregon standards for noncatalyst and 
catalyst wood heaters, respectively, and 
also limit allowable emissions at any 
bum rate (i.e., a cap). 



The 1990 cap for catalyst wood 
heaters is a function of burn rate (dry 
basis) and is calculated by the 
following: 

• For bum rates <2.82 kg/hr. Cap=3.55 g/ 

kg X (bum rate) +4.98 g/hr 

• For bum rate8>2.82 kg/hr, Cap=15 g/hr. 

The 1990 cap for noncatalyst wood 
heaters is 15 g/hr for bum rates less 
than or equal to 1.5 kg/hr and 18 g/hr for 
bum rates greater than 1.5 kg/hr. 

G. Modification/Reconstruction 
Considerations 

ModiHcation or reconstruction, as 
defmed in § 60.14 and § 60.15 of Subpart 
A, shall not, by itself, make a wood 
heater an affected facility under this 
subpart. A "modiHcation" is a physical 
or operational change to an existing 
facility, in this case built before July 1, 
1988, that would result in an increase in 
the emission rate. "Reconstruction" 
means the replacement of components 

4396 

of an existing facility to the extent that 
the fixed capital cost of the new 
components exceeds 50 percent of the 
fixed capital cost needed to construct a 
comparable entirely new facility. Under 
the proposed rule, neither 
"modification" nor "reconstruction" of a 
unit built before July 1, 1988, would 
make that unit subject to the standards. 
On the other hand, a unit otherwise 
subject to them would remain subject, 
even if it were "modified" or 
'■reconstructed." 

//. Certification Testing 

As an alternative to requiring that 
each wood heater be tested for 
compliance, a manufacturer may elect to 
have an entire model line certified. To 
obtain a certificate of compliance the 
manufacturer must submit for testing a 
wood heater which is representative of 
a model line to an EPA-accredited 
Idboratory. If the representative wood 
heater meets the emission limits, the 
entire model line would be certified. 
Compliance with the emission limits 
would be demonstrated by meeting the 
composite or weighted average emission 
limit and by meeting, in addition, for 
Phase II, the individual caps at each of 



246 



CONCLUDING THE NEGOTIATIONS 



at least four bum rates. Applications for 
certiHcation may be submitted at any 
time, but those received before July 1. 
1988, may be considered under either 
the proposed or promulgated 
requirements, at the applicant's option. 
'Additional and revised promulgated 
requirements would not apply 
retroactively. 

/. Test Methods and Procedures 

Procedures for loading the test fuel, 
for setting up the wood heater, for 
operating the wood heater, and for 
conducting the emissions and efficiency 
tests are specified in the regulation. 
Several equivalent methods for 
measuring PM would be permitted in the 
regulation. Efficiency testing would be 
optional. 

/. Accreditation Procedures 

Certification testing would be 
conducted by EPA-accredited 
laboratories and laboratories accredited 
by Oregon and exempted under this 
regulation's grandfather provisions. EPA 
would accredit laboratories based upon 
their demonstrated proficiency and upon 
specified criteria. Applications for 
accreditation may be submitted at any 
time, and those received before July 1, 
1988, may be considered under either 
the proposed or promulgated 
requirements, at the applicant's option. 
Additional and revised promulgated 
requirements would not apply 
retroactively. 

K. Compliance Scheme 

Unless exempted, all model lines 
would have to be covered by a 
certificate of compliance, or each wood 
heater would have to be individually 
tested. All wood heaters affected by this 
standard would be labeled to indicate 
their compliance status and to provide 
comparative performance information 
for consumers. Enforcement would 
include: (1) Inspections at the retail level 
to ensure that all wood heaters are 
properly labeled, (2) parameter 
inspections to ensure that components 
of the manufactured units conform to the 
representative wood heater submitted 
for testing, and (3) emission audit testing 
to ensure that the model line meets the 
emission limits. 



L. Labeling and Owner's Manual 

All appliances subject to the standard 
and offered for sale would be required 
to display both a temporary label and a 
permanent label. In general, the 
temporary label would help the 
prospective purchaser select an 
appHance by providing information on 
relative pollution output, efficiency, and 
heat output. The permanent label would 
contain information relevant to 
compliance and applicability. 
Manufacturers would be required to 
provide operation and maintenance 
information necessary for good 
emissions control in the owner's manual 
that accompanies the appliance. 

M. Catalyst Warranty Requirements 

If the wood heater is equipped with a 
catalyst, the catalyst would have to be 
guaranteed in full for at least two years 
and. beginning July 1, 1990, for at least 
three years for thermal degradation of 
the substrate. Also, the catalyst would 
have to be easily accessible for 
inspection and replacement. 

N. Manufacturer Quality Assurance 

Manufacturers would be required to 
conduct a quality assurance (QA) 
program consisting of both parameter 
inspections and emissions testing. 

O. Alternative Certification 

EPA would allow an alternative 
certiHcation procedure for 
manufacturers who may be unable to 
obtain certification in the event that 
EPA determines that the time for getting 
appliances tested at accredited 
laboratories and getting applications 
processed by EPA exceeds six months. 

P. Recordkeeping and Reporting 

Manufacturers would be requirea to 
maintain records of certification testing 
data. QA program results, production 
volumes, names and addresses of 
purchasers, and information needed to 
support a request for a waiver or 
exemption. Accredited laboratories 
would have to keep testing records and 
report periodically to EPA certain 
information required under alternative 
certification provisions. Retailers would 
have to maintain names and addresses 
of purchasers. All records would have to 
be retained for at least five years. 



WOOD STOVE NPRM 



247 



III. Impacts of this NSPS 

EPA used a wood stove demand 
simulation model to estimate the 
anticipated nationwide impacts of this 
NSPS. This computer model assumes 
households will attempt to minimize the 
cost of wood heat over the lifetime of 
the heater. It also assumes that, 
independent of the impacts of this 
regulation, wood heater sales volume 
would continue at about the same rate 
as in 1985. Using a variety of inputs such 
as the price of firewood, the price of 
various types of wood heaters, and 
wood heater sales volumes, the model 
projects on a regional and household/ 
income basis, changes in sales, 
emissions, wood use, and heating costs 
that will occur as a result of this 
regulation. From these data, nationwide 
impacts were developed on air pollution, 
energy and control costs, and various 
economic effects in the fifth year after 
the regulation takes effect and 
compared with the impacts that would 
have occurred in the absence of 
regulation. 

A. Air 

Particulate emissions ft'om wood 
heaters are a function of the method of 
measurement. Emission estimates based 
on laboratory tests have been made for 
both uncontrolled and controlled wood 
heaters. Based on a total particulate 
catch using EPA's Modified Method 5 
(MM5) discussed in the Sampling 
Methods section, a typical conventional 
wood heater emits about 60 to 70 g/hr of 
PM. Catalytic and noncatalytic wood 
heaters complying with the 1988 
standards would emit at least 82 and 72 
percent less, respectively. Although 
catalytic wood heaters achieve greater 
emission reductions initially, presumed 
deterioration of the catalysts over time 
are estimated to result in emissions from 
catalytic wood heaters over their useful 
lifetimes approximately equal to 
noncatalytic wood heaters. Catalytic 
and noncatalytic wood heaters 
complying with the 1990 standards 
would emit at least 86 and 75 percent 
less, respectively, than conventional 
wood heaters. Tlie numerical emission 
limits in the regulation, however, are 
based on PM measurements using the 



4997 

Oregon Method 7, also described in the 
Sampling Methods section, which 
measures roughly half the emissions of 
MM5. 

Assimiing that: (1) The price increases 
resulting from the standard-would be on 
the order of $120 to $200 per appliance. 

(2) manufacturers would offer a mix of 
catalytic and noncatalytic wood heaters. 

(3) the initial emissions control 
efficiency of a catalyst may deteriorate 
over time, and (4) some wood heaters 
will be exempted for a year. EPA 
projects that the nationwide PM 
emission reduction in the fifth year is 
395 Cigagrams (Gg) per year (or 436,000 
tons per year), as shown in Table 2. It is 
important to note that all of the fifth 
year impact data refer only to wood 
heaters manufactured on or after July 1, 
1988, or sold on or after July 1. 1990. 
Wood heaters manufactured before July 
1. 1988. and sold before July 1, 1990, 
would not be affected by this regulation. 

Although no emission reduction 
estimates have been made for pollutants 
other than PM, the control techniques 
used to reduce PM emissions are known 
to reduce carbon monoxide (CO) and 
polycyclic organic matter (POM) 
emissions as well. POM is a class of 
compounds containing carcinogens. 

B. Other Environmental Impacts 

This NSPS is anticipated to have no 
impacts or only negligible impacts on 
water quality or quantity, waste 
disposal, radiation, or noise. The 
increased wood heater efficiencies are 
expected to result in reduced wood 
consumption thereby saving timber and 
preserving woodlands and vegetation 
for aesthetics, erosion control, and 
ecological needs. 

C. Health and Welfare Impacts 

Health effects associated with 
exposure to wood heater PM include 
both mortality and morbidity resulting 
from respiratory disease, cardiovascular 
disease, and some risk of 
carcinogenesis. Welfare effects of wood 
heater PM emissions include soiling and 
materials damage to residences. 
Depending on the dispersion 
characteristics of the PM emissions, 
soiling and materials damage may also 



248 



CONCLUDING THE NEGOTIATIONS 



occur to commercial, industrial, 
governmental, and institutional 
facilities. Wood heater PM emissions 
also adversely affect visibility. The 
State of Oregon's regulation on 
woodstove PM emissions was prompted, 
in part, by the degradation in regional 
visibility. Table 2 includes a rough 
estimate of the dollar value benefits of 
reducing the mortality, morbidity, and 
household soiling and materials damage 
associated with the PM emission 
reduction due to the regulation. In 
addition to the health benefits of 
reduced air pollution, this standard is 
expected to reduce creosote deposition. 
Creosote deposition is the principal 
contributor to chimney fires. In 1984, 
126,000 residential fires were attributed 
to wood heat, claiming 140 lives. Thirty 
percent of these flies were thought to 
have started in the chimney. 

D. Energy Impacts 

The increased efficiency of wood 
heaters is estimated to reduce demand 
for firewood by about 700.000 cords in 
the fifth year. 

E. Cost Impacts 

Many consumers would purchase 
more technically advanced wood 
heaters than they would have in the 
absence of the NSPS, and would 
therefore pay up to 25 percent more than 
they would for a conventional wood 



heater. Catalytic and noncatalytic wood 
heaters are, on average, about $200 and 
$120 more expensive, respectively, than 
conventional wood heaters. However, 
on average, this additional expense will 
be more than offset by cost savings from 
the need for less firewood and for fewer 
chimney cleanings over the life of the 
heater. Nationally, in the fifth year, 
there is a projected net savings of $29 
million because of these offsetting 
benefits, 

F. Economic Effects 

The regulation is projected to result in 
a 5 percent decrease in sales in the first 
year when the exemption for the 
smallest firms is in force. A 7 percent 
decrease compared to the no regulation 
case is projected for the second year. In 
the long run. the decrease is expected to 
be about 5 percent. This decrease is 
expected to result, in part, in some 
manufacturers ceasing wood heater 
production, and others reducing it. It is 
not possible at this time to quantify this 
impact. In the long run. the regulation is 
anticipated to have no appreciable 
effect on the price of catalytic and 
noncatalytic low emitting stoves. Two 
important but unquantified impacts of 
the regulation are a potential increase in 
the development of the lower emitting 
heater technology and an increase in the 
spread of consumer information 
concerning this new technology. 



Table 2. Fifth Year Nationwide Impacts Summary 





Costs 
(savinos) 


Emissions 
<Gfl/yr) 


Number ol 

wood 

heaters sow 

(101 


Cords o« 
wood (101 


Health and 
welfare 
benefits 
($101 


No regulation (batekne) 

NSPS.__ - 


(29) 


S49 
154 


eoo 

757 


10.1 
9.4 


" 1.500 



WOOD STOVE NPRM 



249 



IV. Background to Standard 

As discussed elsewhere in today's 
Federal Register, EPA is listing 
residential wood heaters based on its 
determination that wood heaters cause, 
or contribute significantly to, air 
pollution which may reasonably be 
anticipated to endanger public health or 
welfare. 

During the past few years, several 
State and local governments have 
developed regulations controlling, and 
in some instances temporarily banning, 
wood heaters. On July 1. 1986, Oregon 
regulations went into effect prohibiting 
the sale of new wood heaters that are 
not state-certified. Similar regulations 
went into effect in Colorado on January 
1, 1987. Several local ordinances have 
been passed, mostly in the Rocky 
Mountains, to control or ban 
woodbuming. Several other States are 
awaiting the development of a Federal 
NSPS before deciding whether to 
regulate on their own. 

The development of a Federal NSPS 
for wood heaters began in 1985 as a 
response to the growing concern that 
wood smoke contributes to ambient air 
quality related health problems. In 
response to a lawsuit filed by the State 
of New York and the Natural Resources 
Defense Council (NRDC). the Agency 
agreed to conduct a wood heater NSPS 
rulemaking with a schedule calling for 
final action by January 31, 1988. New 
York v. Thomas. Nos. 84-1472. etc. (D.C. 
Cir.) (Settlement Agreement of May 9, 
1986). 



After communicating with the various 
parties interested in the development of 
this standard — the wood heating 
industry, State governments, 
environmental and consumer groups — 
EPA established a negotiating 
committee under the Federal Advisory 
Committee Act to negotiate the 
provisions of the standard. 

Beginning on March 19. 1986, the 
regulatory negotiation committee met 
six times on a monthly basis to discuss 
and reach agreements on a variety of 
technical and policy issues associated 
with the development of the standard. 
At the final meeting of the committee on 



4998 

August 21. 1986. the committee reached 
agreement in principle on all major 
provisions of the standard and, in 
December, the standard that is being 
proposed today was formally agreed to 
by all parties. 

V. Rationale for Proposed Standards 

The purpose of this section is to (1) 
explain briefly the issues negotiated by 
the committee, (2) describe the 
resolutions reached by the committee. 
(3) present the rationale for these 
resolutions. EPA cautions that its 
explanation of the reasons for particular 
committee decisions may not always 
reflect the reason why each individual 
committee member agreed to a 
particular provision of the regulation. 



250 



CONCLUDING THE NEGOTIATIONS 



49 Fed. Reg. 12136 (Mar. 28, 1984) 



DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Parts 121 and 135 
[t}ocket No. Z3634; Notice No. 84-3 J 

Flight Time Limitations and Rest 
Requirements for Flight Crewmembers 

agency: Federal Aviation 
Administration (FAA). DOT. 
action: Notice of proposed rulemaking 
(NPRM). 

summary: The FAA is proposing flight 
time limitations and rest requirements 
for flight crewmembers engaged in air 
transportation. This proposal is based 
on the recommendations of a regulatory 
negotiation advisory committee 
composed of persons who represent the 
interests affected by the flight time 
rules. This proposal results from a 
reassessment of the agency's role in 
regulating flight and rest time in light of 
current operating conditions and current 
regulatory phlosophy. The proposal 
would simplify, clarify, and update the 
regulations and reduce the need for their 
interpretation. 

DATE: Comments must be received on or 
before May 14. 1984. 
ADDRESS: Comments on the proposal 
may be mailed in duplicate to: Federal 
Aviation Administration, Office of the 
Chief Counsel, Attn: Rules Docket 
(AGC-204), Docket No. 23634, 800 
Independence Avenue SW., 
Washington, D.C. 20591; or delivered to: 
Room 915G, 800 Independence Avenue, 
SW., Washington. D.C. Comments may 
be examined in the Rules Docket on 
weekdays, except Federal holidays, 
between 8:30 a.m. and 5:00 p.m. 
FOR FURTHER INFORMATION CONTACT: 
Lawrence P. Bedore. Project 
Development Branch, Air 
Transportation Division. Office of Flight 
Operations. Federal Aviation 
Administration. Room 304, 800 
Independence Avenue SW., Washington 
D.C. 20591; Telephone (202) 426-8096. 



SUPPLEMENTARY INFORMATION: . 

Comments 

Interested persons are invited to- 
participate in this rulemaking by 
submitting written data, views, or 
arguments and by commenting on the 
possible environmental, energy, or 
economic impact of the adoption of this 
proposal. Comments are also 
specifically requested concerning the 
implementation and effective date of the 
final rule. For example, the FAA would 
like to know if operators want the 
option of complying before the 
mandatory effective date. The FAA 
proposes to establish an effective date 
of 180 days after the publication of the 
final rule in the Federal Register. 

The comment should carry the 
regulatory docket or notice number and 
be submitted in duplicate to the address 
above. All comments received as well as 
a report summarizing any substantive 
public contact with FAA personnel on 
this rulemaking will be filed in the 
docket. The docket is available for 
public inspection both before and after 
the closing date for making comments. 

Before taking any final action on this 
proposal, the Administrator will 
consider the comments made on or 
before May 14, 1984 and the proposal 
may be changed in light of the " 
comments received. The FAA is 
allowing only 45 days for comment on 
this NPRM, because notwithstanding the 
significance of the issues involved, the 
FAA believes that this is sufficient time 
given the length of and the 
accomplishments of the Regulatory 
Negotiation Advisory Committee 
sessions. 

The FAA will acknowledge receipt of 
a comment if the commenter includes a 
self-addressed, stamped postcard with 
the comment. The postcard should be 
marked "Comments to Docket No. 
23634." When the comment is received 
by the FAA. the postcard will be dated, 
time stamped, and returned to the 
commenter. 



FLIGHT TIME NPRM 



251 



Availability of The NPRM 

Any person may obtain a copy of this 
notice of proposed rulemaking (NPRM) 
by submitting a request to the Federal 
Aviation Administration, Office of 
Public Affairs. Attention: Public 
Information Center, APA-430, 800 
Independence Avenue SW., 
Washington, D.C. 20591. or by calling 
(202) 42&-8058. Communications must 
identify the notice number of the NPRM 
wanted. Anyone interested in being 
placed on a mailing list for future FAA 
NPRM's should also request a copy of 
Advisory Circular No. 11-2 which 
describes how to apply to be on the 
mailing list. 

Background 

The Federal Aviation Act of 1958 (49 
U.S.C. 1351 et.- seq.) requires the 
Administrator of the Federal Aviation 
Administration to issue "reasonable 
rules and regulations governing, in the 
interest of safety, the maximum hours or 
periods of service of aircrew and other 
employees of air carriers." The rules 
issued by the FAA under this provision 
are generally referred to as "flight time 
limitations." The flight time limitation 
rules that apply to the major scheduled 
airlines — those most familiar to the 
traveling public — are contained in Part 
121 of the Federal Aviation Regulations 
(14 CFR Part 121). These rules contain 
daily rest requirements for certain 
operations and weekly, monthly, and 
annual limits on the number of hours of 
flight time. 

The flight time limitation rules that 
apply to the fast growing scheduled 
airlines that operate airplanes of 30 or 
less seats (commonly referred to as 
"commuters") and air taxi operations 
are contained in Part 135 of the Federal 
Aviation Regulations (14 CFR Part 135). 
These rules contain daily rest 
requirements as well as daily limits on 
the number of hours of flight time but do 
not contain weekly, monthly, or annual 
limits. The Airline Deregulation Act of 
1978 requires the Administrator, among 
other things, to "impose requirements 
upon * * * commuter air carriers to 
assure that the level of safety provided 
to persons traveling on such commuter 



air carriers is, to the maximum feasible 
extent, equivalent to the level of safety 
provided to persons traveling" on Part 
121 air carriers. 

Despite changes in the airline 
transportation industry over the past 30 
years, the rules governing flight time 
limits and rest requirements have 
remained virtually unchanged. No safely 
reasons have been presented which 
have necessitated changes to the 
regulations. But the presumed safety of 
the rules does not necessarily mean that 
the rules are as effective as they should 
be or that given recent changes in the 
industry they will continue to provide an 
adequate safety standard. There are a 
number of factors which affect the 
adequacy of the rules and require that 
they be amended. 

Perhaps the most significant factor 
requiring amendment of the current 
rules is that the rules regulating the rest 
requirements under Part 121 are 
extremely complicated. Over the 30 
years of their existence they have 
required thousands of pages of 
interpretations, have sometimes been 
incorrectly followed by air carriers, and 
have been difficult to enforce. Thus, a 
primary aim of this rulemaking is to 
clarify and simplify the rest 
requirements for domestic air carriers. 
This is consistent with Executive Order 
12291. 

A second significant factor requiring 
amendment of the rules has been their 
inflexibility. For example, although 
under the current rule air carriers are 
not consideil'ed in violation of the rules if 
flight times are exceeded due to adverse 
weather conditions or other 
circumstances beyond the control of the 

12137 

air carrier, an air carrier presently has 
not flexibility to adjust scheduled rest 
periods in the event of late arrivals or 
other factors. If a flight is late, the 
subsequent flights must often be held up 
while the flight crewmember receives 
his scheduled rest. This has resulted in 
numerous canceled flights as well as 
delays, and has often required 
crewmembers to spend extra days away 
from home. An important objective of 



252 



CONCLUDING THE NEGOTIATIONS 



this rulemaking proceeding is to 
eliminate this problem, without 
derogating safety, by allowing flexibility 
in scheduling rests so that air carriers, 
passengers, and flight crewmembers are 
not unnecessarily inconvenienced. 

A third factor affecting the current 
rules is a change in the character and 
make-up of the air transportation 
industry. In the past, most of the 
domestic air carriers were major 
companies each employing several 
thousand crewmembers. However, 
under deregulation of the air 
transportation industry, the number and 
variety of part 121 domestic operators 
has dramatically increased. The present 
complexity and variety of operations 
require that the FAA provide clear and 
simple minimum safety criteria for all 
operators. If the present rules are 
examined as the criteria for safe flight 
time limitations and rest requirements, 
some potential weaknesses are 
apparent For e)^ample. current Part 121 
fligh time limits are effective against 
chronic long-term fatigue because they 
provide weekly, monthly, and annual 
flight time limits as well as daily rest 
requirements for a pilot who flies more 
than 8 hours in a 24-hour period. But 
these rules do not provide rest 
requirements for a pilot scheduled for 8 
hours or less flight time in a 24-hour 
period. Thus, under the current rules an 
operator can schedule a flight 
crewmember for 6 hours or less of flight 
time in a 24-hour duty day and repeat 
this cycle until the flight crewmember 
reaches the 30-hour weekly limit. The 
current Part 121 rule. then, provides no 
protection against acute short-term 
fatigue for flight crewmembers 
scheduled for 8 hours or less of flight 
time in a 24-hour period. On the other 
hand, under Part 135. acute short-term 
fatigue is covered by a 10-hour minimum 
rest requirement in a 24-hour period and 
by a flight time limit of 8 hours for a one- 
pilot crew and 10 hours for a two-pilot 
crew; but not annual, monthly, or 
weekly limits exist to protect against 
long-term fatigue. Under existing Part 
135 rules a flight crewmember could fly 
10 hours a day with a 14-hour duty day 
every day of the year, all year. 



A fourth factor affecting the current 
rules, and one related to the changing 
character of the air transportation 
industry, has been the growth of 
commuter-type operations. Some 
commuter-type operations fall under 
Part 121 domestic rules while others fall 
under Part 135 rules. A question exists 
as to whether either set of requirements 
effectively covers these comparatively 
new and growing operations. Thus an 
additional aim of this rulemaking 
proceeding has been to study the 
materials submitted by this industry 
group and incorporate into the rules 
standards which will provide a level of 
safety equivalent to other air 
transportation operations. 

The current rulemaking proceeding is 
not the FAA's flrst attempt to solve 
these problems. For several years the 
FAA has recognized that the flight time 
hmits and rest requirements need to be 
clarifled and substantively improved in 
those areas where they are potentially 
weak. On several occasions the FAA 
has attempted to correct the flight time 
Umitation problems of both Parts 121 
and 135 through rulemaking actions. ' 
But because of the complexity of the 
flight time rules and the economic 
interests affected, none of the past 
proposals succeeded in resolving the 
problems to the satisfaction of the 
affected parties. Given the importance 
of these rules in air transportation 
safety, the FAA, therefore, decided to 
try an innovative approach which would 
bring the affected parties together to 
negotiate a resolution. It was the FAA's 
hope that this approach would produce 
a proposal that would at once simplify 
and clarify the existing regulations, 
increase their flexibility, and meet ail 
statutory requirements. 



' The following past proposals have to do with 
flight time limitations and rest requirements: 
Notice No. 77-17 (42 FR 43490, August 29, 1977) 
Notice No. 7ft-3 (43 FR 8070. February 27, 1978] 
Notice No. 7S-3B |4S FR 53316. August 11, 1080| 
Notice No. aZ-4 [47 FR 10748, March 11. 1982] 



FLIGHT TIME NPRM 



253 



Regulatory Negotiation 

Regulatory negotiation, as 
recommended by the Office of Vice 
President and by the Administrative 
Conference of the United States, is a 
procedure by which representatives of 
all interests affected by a rulemaking 
fully discuss the issues imder conditions 
conducive to narrowing or eliminating 
differences and to negotiating a 
proposed rule acceptable to each 
interest. In accordance with the 
reconmiended procedure, the FAA 
created an advisory commmittee 
chartered under the Federal Advisory 
Committee Act. The committee is 
comprised of persons representing the 
diverse interests affected by the flight 
time rules including persons 
representing flight crewmembers, air 
carriers, air taxis, helicopter operators, 
and the pubUc At its opening session, 
the committee was addressed by the 
FAA Deputy Administrator, the Deputy 
Secretary of Transportation, the Legal 
Counsel to the Vice President, a 
representative of the Office of 
Information and Regulatory Affairs in 
the Office of Management and Budget, 
and the Chairman of the Administrative 
Conference of the United States. These 
individuals stated their support for the 
committee and encouraged the 
committee to take its charge seriously. 
In addition, representatives of these 
offices attended and monitored sessions. 
The committee met under the direction 
of Nicholas Fidandis (former Director of 
Mediation Services of the Federal 
Mediation and Conciliation Service) 
who acted as convenor/mediator. 

The committee met for 16 days in 1983 
(June 29-30. July 11-13. July 25-27, 
August a-10, August 22-25, and 
September 26) and thocoughly discussed 
the major issues involved in the 
regulation of flight time limits. 
Numerous proposals and justifications 
were drafted by participants and 
submitted to the committee for review. 
Copies of ail proposals submitted for 
consideration by committee members 
and copies of written summaries of each 
meeting are available in the pubUc 
docket for this NPRM. Although the 



committee did not reach consensus on 
any particular proposal, its deliberations 
were successful because committee 
members gave serious consideration to 
and entered onto candid discussion of 
the various proposals and justifications 
submitted to them. Thus the committee 
succeeded in narrowing the differences 
among parties and in reaching 
substantial agreement of some issues. In 
addition, the committee identified major 
areas of concern and all peirties 
obtained significant, new information on 
a subject which has been discussed, 
without resolution, for years. This 
docimient is a notice of proposed 
rulemaking that reflects the committee's 
discussion of and agreements on the 
issues. The document sets forth the 
FAA's analysis of those agreements and 
discussions. 

The Regulatory Negotiation Advisory 
Committee also met on February 14, 
1984, to review and discuss this 
proposed rule and preamble. A majority 
of the committee members 
recommended that the proposed rule be 
published in the Federal Register as 
submitted. Several members of the 

12138 

committee, however, dissented from this 
recommendation because they believed 
that certain issues which have not been 
resolved to their satisfaction should be 
addressed further before the proposal is 
published. The FAA has decided to 
publish the proposed rule and preamble 
as submitted to the committee on 
February 14, but with modifications in 
the preamble which address the 
following unresolved issues: 

1. The maximum flight time allowed 
between rests under proposed Parts 121 
and 135 scheduled operations; 

2. The minimxun amount of rest 
required under proposed Parts 121 and 
135 scheduled operations; 

3. The maximum weekly, monthly, and 
annual flight time limits imder proposed 
§ 121.471(h); 

4. The limitation of "passenger- 
carrying" in the definition of "scheduled 
operations" under proposed § 135.261(b): 
and 



254 



CONCLUDING THE NEGOTIATIONS 



5. The lack of a speciHc response time 
for deviations under proposed 
S 135.263(f). 

Modifications on.these issues have 
been made in appropriate sections of the 
preamble. 

Comments received on this proposed 
rule will be reviewed by the coounittee 
to determine whether it should 
recommend that the proposal be 
modified. Any necessary changes would 
be negotiated by the committee in the 
same manner as the NPRM. It must be 
emphasized that a decision on the final 
rule is the sole responsibility of the 
Administrator. 



PROPOSED REVISIONS 

General Discussion 

The proposed rule modifies the 
current nde in several important ways. 
First, it reorganizes the regulations 
according to certain operational 
differences by creating a separate 
category in Part 121 domestic rules for 
commuter-type operations and in Part 
135 by separating scheduled operations 
from non-schedule. Secondly, it adds 
cumulative flight time limits for all Part 
135 operations. The cumulative flight 
time limits and daily rest requirements 
for commuter-type Part 121 and 
scheduled Part 135 operations would be 
identical. Thirdly, it clarifies the daily 
rest requirements of Part 121 operators 
and specific Part 135 operators and adds 
provisions which correct potential 
weaknesses in the current rule and 
""which provided scheduling flexibility for 
air carriers. A complete description and 
rationale for specific revisions appears 
below. 



I 



POST-COMMENT MEETING NOTICE 



255 



49 Fed. Reg. 31523 (Aug. 7, 1984) 



(Docket No. 23634] 

Regulatory Negotiation Advisory 
Committee; Meeting 

Pursuant to section 10(a)(2) of the 
Federal Advisory Committee Act (Pub. 
L 92-463; 5 U.S.C.. App. I), notice is 
hereby given of the next meeting of the 
Regulatory Negotiation Advisory 
Committee for flight and duty time 
rulemaking to be held September 11^^13. 
1984. at the Quality Inn Pentagon City. 
300 Army Navy Drive, Arlington. 
Virginia, commencing at 9KX) aun. 

The agenda for the meeting is as 
follows: the Committee will review 
comments received on Notice of 
Proposed Rulemaldng (NPRM) 84-3. 
Fli^t Time Limitations and Rest 
Requirements for Flight Crewmembers 
(49 FR 12136; March 28, 1984). to 
determine whether it should recommend 
that the proposal be modified. Any 
necessary dianges to the proposal 
would be negotiated by the Committee 
in the same maimer as the NPRM. 

The Committee should strive to 
resolve any remaining issues at this 
meeting as the Federal Aviation 
Administration intends to dissolve the 
Committee and proceed with prompt 
development of any rule changes as 
necessary based on Notice 84-3. 
comments received on that notice, and 
any additional recommendations 
provided by the Committee. 

Attendance is open to the interested 
public but limited to space available. 
With the approval of the Chairperson, 
members of the public may present oral 
statements at the meeting. Persons 
wishing to present statements or obtain 
information should contact Mr. William 
]. Sullivan, Executive Secretary, 
Regulatory Negptiation Advisory 
Committee, Office of Associate 
Administrator for Aviation Standards. 
800 Independence Avenue, S.W.. 
Washington. D.C. 20591. telephone 202- 
426-7815. 



Based on the assumption that the 
Committee will resolve any remaining 
issues and recommend responses to ^e 
comments received on Notice 84-3 
during the September meeting, one 
additional meeting would be required to 
review the draft final rule. Every 
attempt will be made to publish notice 
of such meeting as soon as practicable. 

Issued at Washington, D.C on August 1, 
1984. 

Fred Laird. 

Acting Executive Secretary. U.S. Regulatory 
Negotiation Advisory Committee. 
PH Doc ftt-20aos Filed B-6-B4; •:4S ami 
HLUNQ CODE 491»-1»-M 



256 CONCLUDING THE NEGOTIATIONS 



k>w OFFICES 

PlIIMP J. irAKTER 

SUITE 40O 

4601 MAssACHuserrs avenue, n. w. 

WASHINGTON. D. C. 200I6 



(202) 966-034 I 



February 13, 1984 



Dr. R. Leonard Vance 
Director, Health Programs 
Occupational Safety & Health 

Administration 
U.S. Department of Labor 
200 Constitution Avenue 
Washington, D. C. 20210 



Re; Benzene Discussion Group 

Dear Leonard: 

As you know, representatives of the AFL-CIO; American Iron 
and Steel Institute; American Petroleum Institute; Chemical Manu- 
facturers Association; Oil, Chemical & Atomic Workers Interna- 
tional Union; Rubber Manufacturers Association; United Rubber 
Workers of America; and United Steelworkers of America have been 
meeting for the past several months in an effort to develop a 
consensus on the major components of a standard dealing with the 
occupational exposure to benzene. 

The motivating force of the effort has been the belief that 
the interests that would be substantially affected by the subject 
matter of a regulation are often the most able to bring practical 
insights into the issues presented, such as what is needed to 
offer protection on the shop floor, what the problems are with 
various provisions, what alternative ways are there of achieving 
the goals with minimal disruptions. In short, those who must 
live with it are in a particularly advantageous position to 
address the respective needs and concerns in developing an effec- 
tive regulation that, in the long run, would be more 
satisfactory to everyone. That goal seemed particularly laudable 
given the history of OSHA's benzene standard. But, of course, 
that history also made the quest more difficult. 

The discussions developed the issues thoroughly and explored 
a number of alternative approaches. The representatives met 
often with their constituencies and developed the views and needs 
of those they represented. As you can well imagine, that alone 



BENZENE MEDIATOR LETTER 257 



Dr. R. Leonard Vance 
February 13, 1984 
Page 2 



was an accomplishment, since there was a wide variety of view- 
points within the respective interests with respect to both the 
substance and the procedure of the approach. The representatives 
also met with their counterparts from allied interests to develop 
common views and positions. Discussion outlines and papers were 
prepared and discussed extensively. The representatives and 
their organizations invested an enormous amount of work in this 
project. Every representative and interest conducted the discus- 
sions in the utmost good faith: the individuals and interests 
clearly jelled into a productive group that attempted to bridge 
the problems that have plagued some OSHA rulemaking in the past. 

The group made significant progress towards a consensus on 
an overall approach. Unfortunately, however, I regret to report 
that enough differences remain that discussions have broken down 
and they have therefore been adjourned. The group felt it was 
important to consider the standard as a whole, and hence that it 
would be inappropriate to recommend even pieces of it without 
concurrence on its broader aspects. Thus, we have nothing tan- 
gible as a result of the discussions to provide OSHA at this 
time. 

That is not to say, however, that the effort has not been 
worthwhile. The group was unanimous that it has been a produc- 
tive, beneficial undertaking. It aided the respective parties in 
sorting out the complex inter-relationship of the provisions of 
the standard, but even more important, it enabled the parties to 
understand the needs and concerns of the others. As a result, 
each party can better respond to the others. Further, the group 
got to know one another and develop a productive, working rela- 
tionship based on mutual respect and integrity. We all hope that 
that will diminish unproductive adversarial tangles in the future 
so that the important issues can be dealt with directly and 
concretely.^ Thus, we would hope that even if nothing further 
develops of the discussions, OSHA will ultimately reap consider- 
able benefit from the process by means of a more efficient hear- 
ing on its benzene standard, and indeed during future proceed- 
ings. 

Each interest is free to pursue its own devices concerning 



1. Given the apparent misunderstanding in some quarters, I should 
note that we have always viewed the discussions as a form of 
adversarial relationship, not a hot tub of let's all be friends; 
its purpose is to channel the adversarial relationship into a 
more productive posture where the needs and concerns can be 
confronted directly. We hope we achieved that. 



258 CONCLUDING THE NEGOTIATIONS 



Dr. R. Leonard Vance 
February 13, 1984 
Page 3 



OSHA' s benzene standard. No one is bound by anything that was 
said or done during the discussions, and every participant agreed 
that those discussions would not be used against anyone during 
the hearings or other proceedings. The discussions were explora- 
tory and tentative. No interest or person was committed by them. 

We are hopeful (that is an occupational hazard of mediators) 
that discussions will continue ad hoc and informally, although 
that is by no means assured. Certainly the sense of the meeting 
was that "no doors are being closed." 

We hope that much of the effort that went into this project 
will facilitate similar efforts in the future. To that end, we 
would appreciate any comments that you, others at OSHA, those who 
peurticipated in the project, or those who did not, may have on it 
— v^at was good, what could have been improved, and what is 
inherently a problem. We welcome those comments for attribution 
or anonymously so the process can benefit from actual experience. 

We very much appreciate the opportunity to work with an 
outsteuriding group of responsible, dedicated professionals. It 
has been a rewarding undertaking for us . 

Sincerely yours. 



Philip* JT^Harter 



Gerald W. Cormick 



cc: All Participants 




RCRA PERMIT LETTER 259 



ERM-McQknnon Associates 

EnvlromMntal Rttouictt Hwragvnwnt 



283 Franklin street • Boston. Massactiusetts 02110 s (617) 357-4443 



March 10, 1987 



Lee M. Thomas* Administrator 

U.S. Environmental Protection Agency 

401 "M" Street. SW 

Washington, O.C. 20460 

Dear Mr. Thomas: 

I am pleased to advise you that the RCRA Permit Modification 
Negotiating Committee has completed its work and herein submits 
its recommendations for revising the current rule governing 
modifications to RCRA permits. The attached Committee Statement 
is the result of over five months of intense negotiations among 
representatives of Industry, state government, EPA and public 
interest organizations. The Statement will be used as the basis 
for a Proposed Rule. Committee members who signed the Statement 
have agreed to support the rulemaking as long as it is consistent 
with the Statement. 

The Committee Statement represents agreement among 18 of the 
19 Committee members. The Chesapeake Bay Foundation actively 
participated in this negotiated rulemaking project but their 
representative chose not to sign the Statement. It is my 
understanding that the Foundation disagrees with the principle of 
the automatic authorization of Class 2 permit modification. The 
Foundation intends to forward a letter clarifying their position. 

Unfortunately, the final meeting of the Committee was cut 
short (by a bomb scare) and several points were not fully 
discussed. As such, individual Committee members would like to 
clarify or highlight the following items: 

• The modification assignments contained in Attachments 
A and B should be part of the Proposed Rule. 

• Several Class 1 modifications require prior approval 
of the Agency Director. Most of the Committee members 
felt that the last two unclassified modifications 
(see page 12, Attachment A) should be assigned to 
Class 1 with prior approval of the Director. 

• Two distinct types of temporary authorizations (TA's) 
were developed. One temporary authorization would be 
based upon a TA request, while the other could be 
Issued after a permit modification request Is 
submitted. 



An affliute of me Envtronmental Resources Management Croup witn offices In 
Annapolis. MO • Bioomington. mn • Boston. MA • Brentwood. TN • cnaneston. wv • Columbus. OH • East Lansing, mi ■ Houston. TX 
Marietta. CA • McLean. VA • Meuine. la • Miami. Fl • PaUdne. IL • Plalnvlew. NY • Tampa, fl • wainut CreeK. CA • west Chester. PA 



260 



CONCLUDING THE NEGOTIATIONS 



ERM-McGlennon fissociat^s 



• Some Committee members felt that TA' s should be 
allowed for less than 90 days. 

• With respect to the submission of a TA request* the 
permittee must submit sufficient Information to the 
agency to ensure compllancef to the extent prac- 
ticable, with Part 264 requirements. Where this Is 
not practicable, the applicant must comply with Part 
265 requirements. 

• When referring to a change of more or less than 25% 
of capacity, this would be the Initially permitted 
capaci ty . 

In addition to the proposed rulemaking, the Committee 
recommends that EPA establish an informal working group to 
address the need for and feasibility of allocating funds for 
local technical review of specific permit modification requests 
and for public education on hazardous waste Issues. The 
following organizations should be considered In selecting members 
of this new working group: 

• The Legal Environmental Assistance Foundation 

• The Hazardous Waste Treatment Council 

• The National Solid Waste Management Association 

• The American Coke and Coal Chemical Institute 

• The Chemical Manufacturers Association. 

The members of the Committee appreciate the opportunity to 
work with EPA on the development of the proposed rule. Finally, 
the Committee recognizes that It may be useful to reconvene an 
Informal meeting of the Committee to assist you In reviewing a 
draft rule or reviewing comments on the proposed rule. 



Since rel y.- 



Jcmn A. S. McGlennon 
Committee Facilitator 



JM/cs 



Marci a W11 1 lams 

Chris Kirtz 

Members of the Committee 



RCRA PERMIT STATEMENT 261 

FINAL 
NEGOTIATING COMMITTEE STATEMENT 
ON 
PERMIT MODIFICATION RULEMAKING 



February 24, 1987 

In July 1986, the U.S. Environmental Protection Agency (EPA) 
announced in the Federal Register the establishment of the Permit 
Modification Negotiating Committee. The Committee was charged 
with negotiating issues leading to a Notice of Proposed Rulemaking 
which would amend current regulations governing major and minor 
modification to RCRA permits. The Committee consists of 
representatives from industry, state government, EPA and 
environmental/citizen groups. A complete list of the Committee 
members is presented at the end of this Statement. 

The Permit Modification Negotiating Committee held its first 
formal meeting in Washington, D.C. on September 10, 1986. 
Committee protocols were adopted and several Working Groups were 
formed to examine key issues. The full Committee and the Working 
Groups met throughout October, November and December, 1986 and 
January and February, 1987. 



262 CONCLUDING THE NEGOTIATIONS 



-2- 



At the conclusion of the December Conunittee meeting, a 
Working Group consisting of seven Committee members was asked to 
prepare material for the January 13th meeting. In response to 
that request, a preliminary Statement was first prepared by the 
facilitators based primarily on the minutes of earlier meetings 
and related written materials. The preliminary Statement was 
distributed to the Working Group and discussed in a conference 
call held on January 9, 1987. A Draft Statement was then 
prepared incorporating the comments and suggestions made during 
the conference call. The Draft Statement was discussed and 
revised by the full Committee at the January 13th and 14th 
meeting and the February 23rd and 24th meeting. This document 
represents the Final Committee Statement. 

OVERALL APPROACH 

After considering a number of alternative approaches, the 
Committee has agreed upon a process that recognizes different 
types or classes of modifications. The review process would 
allow for an expedited approval if there was no public concern 
over the proposed change. 

There will be three classes of modifications. Class 1 will 
cover routine changes such as typographical errors or new 
telephone numbers. Class 1 changes would generally be allowed 
without prior agency approval. The Class 2 and 3 modification 
processes both begin with pxiblic notice of a modification request 
and an early pviblic comment period. If there is public interest, 
an informational meeting is held. In Class 2, the agency makes a 



RCRA PERMIT STATEMENT 263 



-3- 



decision after the informational meeting (if any). In Class 3, 
the agency gives notice of its intent to decide and anyone can 
request a public hearing. 



-18- 



The U.S. Environment Protection Agency commits to publishing 
a Notice of Proposed Rulemaking based on this State.iient. Each 
organization whose name and authorized. signature appears below 
agrees to support the Proposed Rulemaking. 



an Bayer V Date / 7 T~ 

mical WasTie Mana.gemenc, Inc. 

Johry Camoion ^ Dat/e '/ 



jhiy 
Pharmaceutical Manufacturers Association 




LgcilColburn '■ Date 

American Coke and Coal Chemical Institute 



./^yZ£Z 



7 



Frank Coolick Date 

New Jersey Bureau of Hazardous Waste Engineering 



264 



CONCLUDING THE NEGOTIATIONS 



Gary Dierrich 

ICF Corporation/ENSCO Inc. 




^La-rry lastep Z' / 

'Illinois Environmental Pr^j^ti 



on Agency 



'-s-^/GT- 



Date 



^/^V,/>7 



Date / 



^^--. .\ ^ I , 



Bonnij_Exner 

Citizen Intelligence Network 






?- ;?^-^7 



Date 





Ri'chard Fortuna 

Hazardous Waste Treatment Council 



^ 



Date 



P ^/<^/-7 



•-iT)Cm. 



T'^-T^^^ 



Arthur Gillen Date 

BASF Corporation 

Synthetic Organic Chemical Manufacturers Association 



^xw^ IhiC^ 



Khtis Hall 

IBM Corporation 



^Av/i-f 



Date 



^^i?/^^ 



■^^¥/d^7 



William Hamner Date 

North Carolina Division of Health Services 



Minor Hibbs 

Texas Wazer Commission 



....''AP^ 



RCRA PERMIT STATEMENT 265 



-2^ ?l6/.v .~'/i/-^/. ' 3hk y 



Gretchen Mon-i Dare 

League of Women Voters 

Philip Palmer/ " Date ' ' 

Dupont Corporation 

Chemical Manufacturers Association 

Suellen Pirages (J Date 

National Solid Waste Management Association 



Ann Powers Date 

Chesapeake Bay Foundation 



.A.^' ^/J 



Li Ruhl 



Suzi Ruhl Dat 

Legal Environmental Assistance Foundation 



^/3/f7 



h. 



/ky^L.^-— Z^/2 y/^7 



arcia Williams 
S. Environmental Protection Agency 






Eleanor Winsor Date 

Pennsylvania Environmental Council 



i 



CHAPTER 8 - RESOURCES AND LOGISTICS 



Conducting a regulatory negotiation can require resources not 
usually involved in development of regulations. These include 
services of facilitators and convenors, research conducted on behalf 
of the negotiating committee, administrative support for the 
committee, expenses of participation for some of the negotiators, 
and training costs. This chapter addresses the need for these 
resources, options for providing the resources, and mechanisms 
used by federal agencies for obtaining access to them. See chapter 
11 for a list of some individuals and organizations offering 
mediation and other relevant services. 

Overall costs of a reg-neg proceeding are difficult to pinpoint, 
but have been estimated to range from about $25,000 to $200,000, 
depending primarily on the cost of services required for convening 
and facilitation. Factors affecting the cost include whether such 
services are obtained through contracts with non-governmental 
providers, the complexity of the issues, and the degree of 
controversy. The lower end of the range would be realistic only 
when using convenors and facilitators employed by the agency or 
department conducting the reg-neg, or when the negotiations are not 
very complicated. Much higher costs would be entailed when using 
more than one outside neutral and extensive support services, and 
when the negotiations require an extensive schedule of meetings. 



Convenor and Facilitator Services 

The Reg-Neg Act assumes that a facilitator will be used for 
negotiated rulemaking and specifies a number of duties for that 
person, including chairing meetings and keeping records, as well as 
assisting the committee members in the negotiations. (5 U.S.C. 
§566) The Act also provides for use of a convenor, but does not 
require one. (5 U.S.C. §563(b)) 

All of the regulatory negotiations to date have employed the 
services of a neutral third party to facilitate negotiation sessions, 
and many have used neutral third parties as convenors. In some 
reg-negs the same person served as both convenor and facilitator or 



267 



268 RESOURCES AND LOGISTICS 



mediator, while in others different individuals performed these 
functions. Convenors and facilitators have come from several 
sources: from other offices within the agency, from other federal 
agencies such as the Federal Mediation and Conciliation Service, 
and from the private sector. 

The Administrative Conference has created a roster containing 
information on mediators, facilitators, and other neutrals who are 
available to assist in negotiated rulemaking and other cases 
involving federal agencies. Persons interested in locating neutrals 
may request that the Conference provide a list of candidates. For 
further information about the roster, contact the Manager of Roster 
Services at the Administrative Conference, (202) 254-7020. 



Federal Agency Sources 

Services of federal employees from agencies other than the one 
developing a negotiated rule can be arranged through an informal 
loan, a temporary detail, or an interagency agreement, depending on 
the commitment of time and resources required. 

The Federal Mediation and Conciliation Service has provided 
convenors and facilitators for several agencies including EPA and 
the Departments of Education, Agriculture, Housing and Urban 
Development, Transportation, and the Interior, The FMCS budget 
does not provide specific funding for negotiated rulemaking, but the 
agency considers individual requests for FMCS mediators, on a 
reimbursable basis, depending on its available personnel and the 
specific requirements of the negotiation. Inquiries of this nature 
should be directed to John Wagner, Director of Alternative Dispute 
Resolution Services, FMCS (202) 606-5445. FMCS will also 
consider providing training, and can be a source of information 
about mediators in areas of the country outside of Washington, 
D.C. 

The Community Relations Service of the Department of Justice 
can provide conciliators in disputes that involve racial, national 
origin, ethnic or cultural issues. CRS has not been called upon to 
mediate any of the regulatory negotiations to date. For information 
about the availability of CRS neutrals, contact the Director at (301) 
492-5929. 



RESOURCES AND LOGISTICS 269 



Occasionally, experienced convenors or facilitators can be 
borrowed from other federal agencies that have conducted 
regulatory negotiations. The table in chapter 10 lists persons who 
have functioned in these roles in many of the reg-negs to date. 



Private Sector Services 

A number of options exist for obtaining the services of private 
sector mediators, facilitators, or consultants. These include full 
competitive procurement, small purchases, indefinite quantity 
contracts, basic ordering agreements, supply schedules, and hiring 
as consultants, experts or special government employees. 

A report for the Administrative Conference by George D. 
Ruttinger, "Acquiring the Services of Neutrals for Alternative 
Means of Dispute Resolution and Negotiated Rulemaking," 
discusses a variety of issues arising in connection with obtaining the 
services of a neutral third party. Based on this report, the 
Conference recommended procedures for acquiring such services 
(Recommendation 86-8, 1 CFR §305.86-8). Both the 

recommendation and the report appear as appendices to this chapter. 
See especially section III.D for a discussion of the advantages and 
limitations of different options for contracting with neutrals. 
Readers should note, however, that the portions of those materials 
addressing specific mechanisms have in some respects been 
superseded by provisions of the Federal Acquisition Streamlining 
Act of 1994. (See Public Law No. 103-355, §§1005, 1055.) In 
particular, the relevant part of that Act was intended to facilitate the 
hiring of private sector professionals as neutrals by (i) raising the 
threshold for agency use of simplified small purchase procedures 
from $25,000 to as high as $100,000; and (ii) providing that 
agencies need not use full competitive procedures for obtaining 
expert services in litigation or other disputes, including neutrals' 
services. 

The complexity and length of time of a negotiation will affect 
the total cost for a facilitator or convenor. If the costs exceed those 
allowed for a small purchase order, agency rulemaking offices 
should consult with the Head of Contracting Activity (HCA) at their 
agency to determine whether the agency has current contracts in 
place for obtaining these services or has had experience with them. 
The HCA can also check with HCAs of other federal agencies to 
discover whether another agency has an appropriate contract or 



B 







270 RESOURCES AND LOGISTICS 



grant mechanism available to acquire mediation services that could 
be accessed through an interagency transfer of funds. 

Agencies with significant continuing involvement in regulatory 
negotiations may wish to set up a long-term contract mechanism to 
provide ready access to private sector neutrals. Such contracts can 
take months to put into place, frequently longer than is timely for 
beginning a given negotiation. However, they can be structured so 
that, once put into place, the same contract may be used whenever 
needed for future negotiations. (See the appendix for examples of 
contract documents.) 

Committee-Sponsored Research 

During its deliberations, a negotiating committee may require 
the services of technical consultants to advise it, or may require the 
generation of additional information not currently available to the 
parties at the table. These needs raise two issues: the source of 
funds to pay for the services and the mechanism by which to 
disburse the money. 

The agency itself may have funds available to support the 
rulemaking. Alternatively, committee members or other private 
parties concerned with the rule may be able to contribute funds. At 
its initial meeting the negotiation committee may want to adopt 
procedures governing the types of projects and activities that these 
resources would be used for and the procedures for approving these 
projects and activities. Such funds have been used by negotiating 
committees to hire statisticians, computer modelers, and scientists 
who provided information and evaluations for use by committee 
members. 

Management of the funds may be through an existing agency 
technical contract, through a contract with (or a grant to) a neutral 
escrow organization such as the American Arbitration Association 
or the National Institute for Dispute Resolution, or through a small 
purchase directly with the provider of the service. 



Expenses for Training. Orientation and Meetings 

Because pre-negotiation training sessions usually take no more 
than one day, the costs should be less than the ceiling on small 
purchase orders. Agency training offices may have access to skilled 
negotiation trainers through contracts, basic ordering agreements or 
supply schedules. 



RESOURCES AND LOGISTICS 271 



Rental of conference rooms may be necessary if an agency or 
local participants do not have rooms suitable or available for the 
negotiations. Small purchase orders are generally the easiest 
mechanism for paying for conference rooms, unless the agency has 
a contract mechanism in place to provide such services. Agencies 
have usually borne this cost burden for their committee. The 
agency and the committee should consider whether lunches and 
snacks will be served at the meeting site. Eating on the premises 
may save valuable time and it is reasonable to ask committee 
members to pay for food service. 



Expenses of Participation bv Nongovernment Committee 
Members 

While most industrial and business parties can attend 
negotiating sessions on their own budgets, public interest group 
participants, union representatives, and some state or local 
government officials may not have access to organizational funds to 
pay travel expenses, especially if there are multiple meetings held in 
an expensive city. It may be essential to find funding support if 
such parties are necessary to form a balanced negotiating 
committee. This is one of the most difficult issues that an agency 
may have to resolve when undertaking negotiated rulemaking. 

The Reg-Neg Act provides that an agency may, in accordance 
with §7(d) of the Federal Advisory Committee Act (see appendix to 
chapter 3), pay for a committee member's reasonable expenses, 
provided the member certifies a lack of sufficient financial resources 
to participate and the agency determines that the member's 
participation is necessary to assure adequate representation of a 
particular interest. (5 U.S.C. §568(c)) 

Agencies should consider whether it is possible to hold 
meetings in the city where a needy party is located. Computer, 
telephone, or video conferences may also be options for some 
meetings. However, these choices at best may not offer the 
opportunity for human interaction that successful negotiations often 
require. 

An agency may be able to locate agency fiinds that can be used 
for travel of an invited participant. In practice, however, most 
agencies have very tight travel budgets and cannot provide routine 
access to these budgets for external parties. 



B 



272 RESOURCES AND LOGISTICS 



B 



Sometimes, when pressed, an apparently needy public interest 
organization has been able to find a way to pay its own costs of 
participation or to obtain grants to fund its travel. EPA has found 
that problems arise when the same organization is asked to 
participate in a second, third or fourth negotiated rulemaking, for 
by this time the resources of the organization may become severely 
strained. 

The convenor, the facilitator, or a committee member can 
approach charitable organizations for contributions to a resource 
pool for participants' expenses. Such applications can be very time 
consuming. Moreover, because most granting organizations make 
awards only at fixed times during the year, this source of funding 
may not be timely for a given negotiation. The selection of 
organizations to be approached should be considered carefully in 
order to minimize the reluctance of some organizations to accept 
funds fi-om sources that appear not to be neutral. 

Sometimes, members of the negotiation committee can be 
approached with regard to their willingness to assist other parties. 
This too raises several sensitivities. First, it is important that the 
wealthier parties not feel "blackmailed" into contributing, nor 
should they feel they can buy the cooperation of the needy parties. 
Second, if funds are raised, a neutral escrow mechanism must be 
designed so that the needy parties do not feel that they are 
compromised by accepting the funds or that they are perceived as 
accepting "tainted" money. This method may be a last resort 
because of these sensitivities. 



Reimbursement for Time of Nongovernment Participants 

A number of public interest groups have pressed, both in 
individual negotiated rulemakings and before Congress, to be 
compensated for time spent in preparation and negotiations. 
However, agencies have not been willing to provide this 
compensation. The public interest groups' arguments are that if a 
regulation is promulgated and they file suit and win, then they are 
entitled to request the court to order payment of reasonable fees for 
compensation of staff and attorneys. Since a successful negotiated 
rulemaking effort may obviate this litigation, they maintain that they 
should be entitled to the same access to compensation from the 
agencies. Moreover, by cooperating in the drafting of a proposed 
rule, they may claim to have been performing a function that would 
normally be performed by agency staff. 



RESOURCES AND LOGISTICS 273 



A ppendix 

The appendix contains a table prepared by EPA in 1987, 
showing that agency's contract and direct costs for its first seven 
reg-negs. The figures do not include staff time or other resources 
that would ordinarily be spent on normal rulemaking activities. The 
column headed "overall total" shows the sum of "third party neutral 
support" and "resource pool support." The last two columns show 
the division of these expenses between the Office of Policy, 
Planning and Evaluation and the respective program offices. The 
cost of reg-negs, however, has increased substantially since that 
time. (See introductory section of this chapter.) 

Administrative Conference Recommendation 86-8 and the 
background report by George D. Ruttinger discuss various 
mechanisms that are available to acquire the services of convenors, 
facilitators, or other neutrals. (But see explanation above of 
subsequent statutory changes.) 

Also included are sample procurement notices from the 
Commerce Business Daily and sample contract documents from 
EPA and the Department of the Interior. The contract documents 
are included as illustrative examples. They may not necessarily be 
suitable as models to be applied by other agencies where the 
circumstances and requirements may differ. 



274 



RESOURCES AND LOGISTICS 



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ACUS RECOMMENDATION 86-8 



275 



Recommendation 86-8, 1 CFR §305.86-8 



§ 305.86-8 Acquiring the Services of "Neu- 
trals" for Alternative Means of Dispute 
Resolution (Reconunendation No. 86- 

8). 

The Administrative Conference has re- 
peatedly encouraged agencies to take advan- 
tage of mediation, negotiation, minitrials, 
binding arbitration and ottier alternative 
means of dispute resolution ("ADR").' 
While some agencies have begun to employ 
these methods to reduce transaction costs 
and reach better results, many disputes are 
still being resolved with unnecessary for- 
mality, contentiousness and delay. This 
Recommendation is aimed at helping agen- 
cies begin to explore specific avenues to 
expand their use of ADR services. 

A liey figure in the effective worldng of 
various modes of ADR. including negotiated 
rulemaldng. is the "neutral"— a person, usu- 
ally serving at the will of the parties, who 
generally presides and seelcs to help the par- 
ties reach a resolution of their dispute. 
These neutrals, often highly sidlled profes- 
sionals with considerable training in tech- 
niques of dispute resolution, can be crucial 
to using ADR methods with success.* For 
agencies to use ADR effectively, they 
should take steps to develop routines for de- 
ciding when and how these persons can be 
employed, to identify qualified neutrals, and 
to acquire their services. 

The diversity of roles played by neutrals 
and the uncertainty as to certain applicable 
legal requirements present complications 
for agencies considering uses of ADR. Neu- 



> In Recommendation 86-3. the Confer- 
ence called on agencies, where not inconsist- 
ent with statutory authority, to adopt alter- 
natives to litigation and trial-type hearings 
such as mediation, minitrials, arbitration 
and other "ADR" methods. Agencies' Use of 
Alternative Means of Dispute Resolution, 1 
CFR 305.86-3. In the rulemaldng sphere. 
Recommendations 82-4 and 85-5 have been 
instrumental in promoting agency experi- 
mentation with negotiated rulemaldng, 
which Involves convening potentially inter- 
ested parties to negotiate the details of a 
proposed rule. Procedures for Negotiating 
Proposed Regulations, 1 CFR 55 306.82-4 
and .85-5. See also. Negotiated Cleanup of 
Hazardous Waste Sites Under CERCLA, 1 
CFR 305.84-4; Resolving D isput es Under 
Federal Grant Programs, 1 CFR 305.82-2; 
and Case Management as a Tool for Improv- 
ing Agency Adjudication. 1 CFR 305.86-7. 

'See the Glossary in the Appendix for 
brief descriptions of the roles of neutrals in 
various proceedings. 



trals may be specially trained and accredit- 
ed, or may simply hold themselves out as 
having certain expertise, experience or 
credibility. They may be called on to make 
binding decisions, consistent with applicable 
statutory and regulatory requirements, 
when opposing positions cannot be recon- 
ciled, or they may simply render advice to 
the parties. Time may be of the essence in 
acquiring their services, as in many arbitra- 
tions, but in some instances may be a minor 
consideration. Costs of using outside neu- 
trals may range from a few thousand dollars 
(for the services of a minltrial advisor) to 
six figures (for convening and facilitating a 
large-scale negotiated rulemaldng). These 
differences render specific advice difficult to 
give in advance. Agencies, Congress, courts, 
and others who employ ADR methods or 
review their use should nonetheless observe 
certain guidelines intended to accomplish 
the following goals: 

■ Supply. Broadening the base of quali- 
fied, acceptable individuals or organizations, 
inside and outside the government, to pro- 
vide ADR services. 

■ Qualifications. Insuring that neutrals 
have adequate skills, technical expertise, ex- 
perience or other competence necessary to 
promote settlement, while avoiding being 
too exclusive in the selection process. 

■ AcQuiaition. Identifying existing meth- 
ods, or developing new techniques, for expe- 
ditiously acquiring the services of neutrals 
at a reasonable cost and In a manner which 
(a) insures a full and open opportunity to 
compete and (b) enables agencies to select 
the most qualified person to serve as a neu- 
tral, given that the protracted nature of the 
government procurement process is often 
inconsistent with the goals of ADR and the 
need to avoid delays.' 

■ Authority. Minimizing any uncertainty 
under the "delegation" doctrine or similar 
theories that may adversely affect the au- 
thority of some neutrals to render a binding 



'While there may be situations in which 
agencies can obtain the services of a quali- 
fied outside neutral without following 
formal procurement procedures, acquisi- 
tions of neutrals' services are generally gov- 
erned by the Competition in Contracting 
Act, Pub. L. No. 98-369, Title VII, 98 Stat. 
1175, which mandates full and open compe- 
tition for contracts to supply goods and 
services to the Federal government, and the 
Federal Acquisition Regulations, 48 CFR 
Chapter 1, Parts 1-53, which sets forth de- 
tailed procediures for conducting competi- 
tive procurements. 



276 



RESOURCES AND LOGISTICS 



II 



decision. This consideration, however, 
should not prove troublesome where neu- 
trals merely aid the parties in reaching 
agreement (as in nearly all mediations, min- 
itrials and negotiated rulemakings). 

These proposals are intended to help 
agencies meet the challenge of reaching 
these goals in a time of reduced resources 
and in a milieu in which many affected in- 
terests may oppose change. 

Recommendation 

A. Availability and Qualifications of 
Neutrals 

1. Agencies and reviewing bodies 
should pursue policies that will lead to 
an expanded, diverse supply of avail- 
able neutrals, recognizing that the 
skills required to perform the services 
of a dispute resolution neutral wiD 
vary greatly depending on the nature 
and complexity of the issues, the ADR 
method employed, and the importance 
of the dispute. Agencies should avoid 
unduly limiting the pool of acceptable 
individuals though the use of overly 
restrictive qualification requirements, 
particularly once agencies have begun 
to make more regular use of ADR 
methodjs. While skill or experience in 
the process of resolving disputes, such 
as that possessed by mediators and ar- 
bitrators, is usually an important crite- 
rion in the selection of neutrals, and 
knowledge of the applicable statutory 
and regulatory schemes may at times 
be important, other specific qualifica- 
tions should be required only when 
necessary for resolution of the dis- 
pute. For example: 

(a) Agencies should not necessarily 
disqualify persons who have media- 
tion, arbitration or judicial experience 
but no specific experience in the par- 
ticular ADR process being pursued. 

(b) WhUe agencies should be careful 
not to select neutrals who have a per- 
sonal or financial interest in the out- 
come, insisting upon "absolute neu- 
trality"— e.g., no prior affiliation with 
either the agency or the private indus- 
try involved— may unduly restrict the 
pool of available neutrals, particularly 
where the neutral neither renders a 
decision nor gives formal advice as to 
the outcome. 

(c) Agencies should insist upon tech- 
nical expertise in the substantive 
issues underlying the dispute or nego- 



tiated rulemaking only when the tech- 
nical issues are so complex that the 
neutral could not effectively under- 
stand and commvuiicate the parties' 
positions without it. 

2. Agencies should take adavantage 
of opportunities to make use of gov- 
ernment personnel as neutrals in re- 
solving disputes. These persons may 
include agency officials not otherwise 
involved in the dispute or employees 
from other agencies with appropriate 
skills, administrative law judges, mem- 
bers of boards of contract appeals, and 
other responsible officials. The Ad- 
ministrative Conference. Federal Me- 
diation and Conciliation Service 
("FMCS"), the Department of Justice 
(particularly the Community Rela- 
tions Service ("CRS")) and other in- 
terested agencies should work to en- 
courage imaginative efforts at sharing 
the services of Federal "neutrals," to 
remove obstacles to such sharing, and 
to increase parties' confidence in the 
selection process. 

3. Congress should consider provid- 
ing FMCS. CRS and other appropriate 
agencies with funding to train their' 
own and other agencies' personnel in 
the particular skills needed to serve in 
minitrials, negotiated rulemakings, 
and other ADR proceedings. 

4. The Administrative Conference, in 
consultation with FMCS, should assist 
other agencies in identifying neutrals 
and acquiring their services and in es- 
tablishing rosters of neutral advisors, 
arbitrators, convenors, facilitators, me- 
diators and other experts on which 
Federal agencies could draw when 
they wished. The rosters should be 
based, insofar as possible, on full dis- 
closure of relevant criteria (education, 
experience, skills, possible bias, and 
the like) rather than on strict require- 
ments of actual ADR experience or 
professional certification. Agencies 
should also consider using rosters of 
private groups (.e.g., the American Ar- 
bitration Association). The Confer- 
ence, FMCS or another information 
center should routinely compile data 
identifying disputes or rulemakings in 
which neutrals have participated so 
that agencies and parties in future 
proceedings can be directed to sources 
of information pertinent to their selec- 
tion of neutrals. 



ACUS RECOMMENDATION 86-8 



277 



5. Agencies should take advantage of 
opportunities to expose their employ- 
ees to ADR proceedings for training 
purposes, and otherwise encourage 
their employees to acquire ADR skills. 
Employees trained in ADR should be 
listed on the rosters described above, 
and their services made available to 
other agencies. 

B. Acquiring Outside Neutrals' 
Services 

1. In situations where it is necessary 
or desirable to acquire dispute resolu- 
tion services from outside the govern- 
ment, agencies should explore the fol- 
lowing methods: 

(a) When authorized to employ con- 
sultants or experts on a temporary 
basis (e.g., 5 U.S.C. § 3109), agencies 
should consider utilizing that authori- 
zation in furtherance of their ADR or 
negotiated rulemaking endeavors. 

(b) Agencies contemplating ADR or 
negotiated rulemaking projects involv- 
ing private neutrals should, as part of 
their acquisition planning process pur- 
suant to the Federal Acquisition Regu- 
lation ("FAR") Part 7,* periodically 
give notice in the Commerce BtLsiness 
Daily and in professional publications 
of their needs and intentions,* so as to 
allow interested organizations and in- 
dividual ADR neutrals to inform the 
agency of their interest and qualifica- 
tions. 

(c) Where speed is important and 
the amount of the contract is expected 
to be less than $25,000, agencies 
should use the streamlined small pur- 
chase procedures of Subpart 13.1 of 
the Federal Acquisition Regulation ' 
in acquiring the services of outside 
neutrals, particularly minitrial neutral 
advisors, mediators and arbitrators. 

(d) Agencies that foresee the need to 
hire private neutrals for numerous 
proceedings should consider the use of 
indefinite quantity contracts as vehi- 
cles for identifying and competitively 
acquiring the services of interested 
and qualified neutrals who can then 
be engaged on an expedited basis as 
the need arises. Agencies should, 
where possible, seek contracts with 
more than one supplier. In fashioning 
such indefinite quantity contracts, 
agencies should take care to comply 
with the following: 



(1) Agency contracts should specify 
a minimum quantity, which could be a 
non-nominal dollar amount rather 
than a minimum quantity of services.'' 

(2) Negotiation of individual orders 
under the contract is desirable, but 
should generally adhere to the person- 
nel, statements of work, and cost rates 
or ceilings set forth in the basic indefi- 
nite quantity contract, so as to mini- 
mize "sole source" issues. 

(e) Agencies should also consider: 

(1) Entering into joint projects for 
acquiring neutrals' services by using 
other agencies' contractual vehicles. 

(2) Using other contracting tech- 
niques, such as basic ordering agree- 
ments and schedule contracts, where 
appropriate to meet their needs for 
neutrals' services. 

(3) Proposing a deviation from the 
FAR or amending their FAR supple- 
ments, where appropriate. 

(f) Agencies should evaluate con- 
tract proposals for ADR neutrals' serv- 
ices on the qualifications of the of- 
feror, but cost alone should not be the 
controlling factor.* 

2. The Civilian Agency Acquisition 
Council and Defense Acquisition Reg- 
ulatory Council should be receptive to 
agency or Administrative Conference 
proposals for deviations from,* or 
amendments to, the FAR to adapt pro- 
curement procedures to the unique re- 



* 48 CFR Part 7. 

'Agencies are required to give Commerce 
Business Daily notice for all contract solici- 
tations in which the government's share is 
likely to exceed $10,000. 15 U.S.C. 637(e); 48 
CFR 5.201(a). For procurements between 
$10,000 and $25,000 in which the agency 
reasonably expects to receive at least two 
offers, no such notice is required. Pub. L. 
No. 99-591, October 18, 1986. Title IX, Sec- 
tion 922. 

•48 CFR Subpart 13.1. This Subpart 
allows agencies to make purchases in 
amounts less than $25,000 without following 
all of the formalities prescribed in the FAR 
for ordinary procurements. If the procure- 
ment is for less than $10,000, the agency 
need not advertise it in advance in the Com- 
merce Business Daily. 48 CFR 5.201(a). 
None of these provisions relieves the agency 
of its mandate to obtain competition. 

'48 CFR 16.504(a)(2). 

• 48 CFR 15.605(c). 
» 48 CFR 1.402. 



11 



278 



RESOURCES AND LOGISTICS 



P 



qulrements of ADR processes, consist- 
ent with statutory mandates. 

3. In the absence of appropriate con- 
siderations suggesting a different allo- 
cation of costs, in minitrials and arbi- 
tration the parties customarily should 
share equally in the costs of the neu- 
trals' services. 

Glossary 

Mediator. A mediator is a neutral 
third party who attempts to assist par- 
ties in negotiating the substance of a 
settlement. A mediator has no author- 
ity to make any decisions that are 
binding on either party. 

Convenor/Facilitator. Negotiated 
rulemakings generally proceed in two 
phases, one using a "convenor" and 
the other a "facilitator." In the first 
(convening) phase, a neutral called a 
convenor studies the regulatory issues, 
attempts to identify the potentially af- 
fected interests, and then advises the 
agency concerning the feasibility of 
convening representatives of these in- 
terests to negotiate a proposed rule. If 
the agency decides to go forward with 
negotiating sessions, the convenor as- 
sists in bringing the parties together. 
In the second (negotiating) phase, a 
neutral called a facilitator manages 
the meetings and coordinates discus- 
sions among the parties. When the 
parties request, a facilitator may act 
as a mediator, assisting the negotia- 
tors to reach consensus on the sub- 
stance of a proposed rule. The roles of 
convenor and facilitator sometimes 
overlap, and often both functions are 
performed by the same person or per- 
sons. Neither a convenor nor a facilita- 
tor has authority to make decisions 
that are binding on the agency or on 
the participating outside parties. 

Neutral Advisor. A minitrial is a 
structured settlement process in which 
each party to a dispute presents a 
highly abbreviated sununary of its 
case before senior officials of each 
party authorized to settle the case. In 
this recommendation, it is presiuned 
that the government is one party to 
the dispute. In some (but not aU) mini- 
trials, a neutral advisor participates by 
hearing the presentations of the par- 
ties and, optionally, providing further 
assistance in any subsequent attempt 
to reach a settlement. Typically, a 



neutral advisor is an individual select- 
ed by the parties. Duties of a neutral 
advisor may include presiding at the 
presentation, questioning witnesses, 
mediating settlement negotiations, 
and rendering an advisory opinion to 
the parties. In no event does a neutral 
advisor render a decision that is bind- 
ing on any party to a minitrial. 

Arbitrator. An arbitrator is a neutral 
third party who issues a decision on 
the issues in dispute after receiving 
evidence and hearing argument from 
the parties. Arbitration is a less formal 
alternative to adjudication or litiga- 
tion, and an arbitrator's decision may 
or may not be binding. Arbitration 
may be chosen voluntarily by the par- 
ties, or it may be required by contract 
or statute as the exclusive dispute res- 
olution mechanism. 

(51 FR 46990. Dec. 30, 1986] 



SERVICES OF NEUTRALS 279 



BACKGROUND REPORT FOR RECOMMENDATION 86-8 



ACQUIRING THE SERVICES OF NEUTRALS FOR ALTERNATIVE MEANS OF 
DISPUTE RESOLUTION AND NEGOTIATED RULEMAKING 



George D. Ruttinger 

Crowell & Moring 

Washington, DC 



Report to the Administrative Conference of the United States 
November 19, 1986 



CITE AS 1986 ACUS 863 



280 RESOURCES AND LOGISTICS 

864 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

TABLE OF CONTENTS 

I . INTRODUCTION 
II. ESTABLISHING QUALIFICATIONS 

A. Potential Criteria 

B. Agency Experience 

1. Minitrials 

a. Corps of Engineers 

b. Department of Justice 

c. Department of the Navy 

d. Department of Energy 

2. Negotiated Rulemakings 

a. Department of Interior 

b. Council on Environmental Quality 

3 . Summary 

C. Qualifications Required by Government 
Dispute Resolution Agencies 

1. Federal Mediation and Conciliation 
Services 

2. Community Relations Service 

D. Rosters Maintained by Private Organizations 

1. American Arbitration Association ("AAA") y 

2. Center for Public Resources ("CPR") p 

E. Conclusion 
III. PROOniEMENT ISSUES 

A. The Federal Acquisition System 

B. Issues in Contracting for Neutrals' Services 

C. Case Studies 

1. Corps of Engineers Minitrials 

2. Department of Interior 
OCS Negotiated Rulemaking 

3. CEQ Procurement of Regulatory 
Negotiating Services 

a. Historical Background 

b. The CEQ Procurement 

c. The Request for Proposals 

4 . Use of Government "Neutrals" 

D. Evaluation of Techniques 

1. Full Competitive Procurement 

2. Small Purchases 

3 . Indefinite Quantity Contracts 

4. Other Potential Acquisition Techniques 

a. Basic Ordering Agreements 

b. Blanket Purchasing Agreements 

c. Supply Schedules 

d. Hiring Neutrals as Consultants, Experts, ^ 
or Special Government Employees 

e. Innovations in Procedures 

5. Use of Government Neutrals 

E. Long-Term Structural Issues 
IV. DELEGATION ISSUES 

V. CONCLUSION 



1 



SERVICES OF NEUTRALS 281 



ADR "NEUTRALS" 865 

ACQUIRING THE SERVICES OF NEUTRALS FOR ALTERNATIVE MEANS 
OF DISPUTE RESOLUTION AND NEGOTIATED RULEMAKING 



GEORGE D. RUTTINGER 

I. 
INTRODUCTION 

Efficient resolution of disputes involving federal agencies 
is often impeded by the formalities of the adjudication or the 
litigation process. In recent years, private parties and the fed- 
eral government have been searching for ways to streamline the 
litigation process by developing alternative means for dispute 
resolut ion.-i^ To this end, the Administrative Conference of the 
United States ("ACUS") has recommended that administrative 
agencies, where not inconsistent with statutory authority, adopt 
alternatives to litigation such as arbitration, mediation, and 
minitr ials.-^ The various techniques for resolving disputes 
without resort to full litigation or adjudication are referred to 
as Alternatives Means of Disputes Resolution, or ADR. 

In the sphere of administrative rulemaking, similar trends 
have developed. In recent years, several agencies have experi- 
mented with a technique referred to as negotiated rulemaking, 
which involves convening potentially interested parties to nego- 
tiate the details of a proposed rule before it is published for 
notice and comment in accordance with the Administrative Procedure 
Act.-^ ACUS has been instrumental in promoting such experimen- 
tation through its Recommendations 82-4 and 85-5, both of which 
are entitled "Procedures for Negotiating Proposed Regulations."-*^ 



Partner, Crowell & Moring, Washington, D.C. 

See, e.g. , Harter, Points On A Continuum: Dispute Resolu - 
tion Procedures and the Administrative Process , Report to 
the Administrative Conference of the United States (June 5, 
1986). 

ACUS Recommendation 86-3, "Agencies' Use of Alternative Means 
of Dispute Resolution", 1 C.F.R. S 305.86-3. 

See , Harter, Negotiating Regulations; A Cure for Malaise , 
71 Geo. L.J. 1 (1982). 

1 C.F.R, SS 305.82-4 and 85-5. See also, ACUS Recommendation 
84-4, "Negotiated Cleanup of Hazardous Waste Sites Under 
CERCLA," 1 C.F.R. S 305.84-4. 



282 RESOURCES AND LOGISTICS 



866 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

A key figure in the effective working of ADR and negotiated 
rulemaking is the "neutral" who generally presides at the pro- 
ceedings and attempts to assist the parties in reaching a nego- 
tiated resolution or, in the case of arbitration, issues a deci- 
sion on the matter in dispute. The various types of ADR neutrals 
may be summarized as follows: 

Minitrial Neutral Advisors . "A minitrial is a structured 
settlement process in which each side presents a highly abbre- 
viated summary of its case before senior officials of each party 
authorized to settle the case."-^ In some (but not all) mini- 
trials, a "neutral advisor" participates in the minitrial and 
subsequent efforts to settle the dispute. Typically, the neutral 
advisor is a private individual who is selected by the parties in 
dispute, namely the government agency and the private party or 
parties engaged in litigation or adjudication with the government. 
The role of the neutral advisor varies, but his duties may include 
presiding at the hearing, questioning witnesses, acting as a 
mediator during negotiations between the representatives of the 
litigants, and rendering an advisory opinion to the parties. In 
no event does the neutral advisor render a decision that is 
binding on either party to the minitrial. 

Mediators . A mediator is simply a neutral third party who 
attempts to assist parties in negotiating an agreement. A medi- 
ator has no authority to make any decisions that are binding on 
either party. 

Arbitrators . Arbitration is another form of litigation or 
adjudication, without some of the formal trappings. An arbitrator 
is a neutral third party who issues a decision on the arbitration 
issues after receiving evidence and hearing arguments from the 
parties. The arbitrator's decision may or may not be binding. 
Arbitration may be voluntary, in which the parties agree to 
resolve the issues in dispute through arbitration, or it may be 
mandatory, in which a statute or contract specifies arbitration as 
the exclusive means for resolving disputes. 

Convenors-Facilitators for Negotiated Rulemakings . Negoti- 
ated rulemakings generally proceed in two phases. In the first 
phase, a "convenor" studies the issues presented by the proposed 
regulation, attempts to identify the interested parties, and then 
advises the agency regarding the feasibility of convening the 
interested parties in an attempt to negotiate a proposed regula- 
tion. If the agency decides to go forward with negotiated rule- 
making, the facilitator then meets with the interested parties and 
attempts to mediate their differences and develop a proposed rule. 
Under the concept put forward by the ACUS recommendations, the 



ACUS Recommendation 86-3, 1 C.F.R. S 305.86-3. 



SERVICES OF NEUTRALS 283 



ADR -NEUTRALS" 867 

proposed rule developed through this process is then published for 
notice and comment pursuant to Section 553 of the Administrative 
Procedure Act. The convenor and facilitator may be, and often is, 
the same person or persons. The convenor/facilitator has no 
authority to make any decisions that are binding on the interested 
parties to the negotiated rulemaking or the agency promulgating 
the rule. 

One of the by-products of the movement toward ADR and nego- 
tiated rulemaking is the need for agencies to develop methods for 
identifying qualified neutrals and acquiring their services. This 
process involves a number of issues that will be explored in this 
report. Among those issues are the following: 

1. Qualifications . An agency dispute or rulemaking may 
involve technical issues arising under a complex regu- 
latory scheme. How can agencies insure that neutrals 
that are hired to promote negotiation of settlements 
are qualified to assist the parties in sorting through 
such issues? Are technical expertise and substantive 
knowledge required, or do generic mediation skills 
suffice? 

2. Procurement procedures . Statutes and regulations 
governing procurement of services by federal agencies 
require competition and specify a series of procedural 
steps for ensuring that competition is maximized. In 
some cases, these procedures may be inconsistent with 
the agency's need for expedition in acquiring the ser- 
vices of an outside neutral. Are there other ways in 
which agencies can acquire neutrals' services expedi- 
tiously within the competitive system mandated by 
statute and regulation? 

3. Delegation . Most neutrals lack authority to render a 
decision that is binding upon either the agency or 
private parties. However, in the case of blading arbi- 
tration, questions continue to be raised about whether 
decisions delegated to executive agencies by Congress 
can be re-delegated to private parties for binding reso- 
lution. What are the potential "delegation" issues with 
respect to binding forms of ADR, particularly arbitra- 
tion? 

4. Long-term structural issues . The universe of neutrals 
who have specific experience in the experimental forms 
of ADR and negotiated rulemaking is presently very 
small. If the use of such techniques by agencies 
expands, how can agencies broaden the base of indivi- 
duals or organizations who are available and are 
experienced in the arbitration/mediation/facilitation 
process? Should federal agencies develop a centralized 
roster of neutrals from which all agencies could draw? 
To what extent should the federal government utilize and 



284 RESOURCES AND LOGISTICS 

P 

868 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

expand the capabilities of government employees in 
dispute resolution? 

This report will explore these and other issues, drawing 
heavily upon the experience of agencies to date. 

II. 

ESTABLISHING QUALIFICATIONS j 

A. Potential Criteria ' 

The qualifications required to serve as a neutral vary 
depending upon the nature and complexity of the issues, the type 
of dispute resolution technique employed, and the size and impor- ; 
tance of the dispute or regulation to be negotiated. In many ]■ 
cases, seeking an ideal combination of qualifications and experi- I 
ence would unduly limit the pool of individuals available to serve 'M 
as neutrals. For example, only a handful of private parties have I 
actual experience in convening or facilitating the negotiation of 
environmental regulations. Thus, in determining the criteria 
applicable to selection of a neutral, agencies will need to 
balance their desire for competence and experience against the 
need to avoid exclusivity. 

There are various levels of training and experience that 
could be considered adequate to perform the function of a neutral 
in a given case: 

1. General dispute resolution experience . Some of 
those contacted in connection with this report 
expressed the view that "mediation is mediation" 
-- that is, a person who has skill and experience 
in mediating disputes can perform the role of a 
neutral, regardless of the substantive issues 
involved. The Federal Mediation and Conciliation 
Service ("FMCS") has responsibility for mediating 
labor disputes under the Labor-Management Relations 
Act of 1947.-^ But FMCS labor mediators have per- 
formed a variety of other dispute resolution 
functions. Recently, an FMCS mediator successfully 
acted as convenor of a negotiated rulemaking for 
the Federal Aviation Administration ("FAA") in 



-t/ 29 U.S.C. S 173, 



SERVICES OF NEUTRALS 285 



ADR "NEUTRALS" 869 

developing proposed regulations concerning flight 
and duty time for aircraft crews. -^ 

2. Experience in specific ADR techniques . As noted, 
agency experience with ADR and negotiated rule- 
making has been relatively limited to date. If the 
selection of neutrals is confined to persons with 
direct experience in these techniques, the fear of 
exclusivity will become a reality. 

3. Technical expertise . There is no denying that it 
would be useful in arbitrating a dispute regarding 
licensing of a pesticide under the Federal Insecti- 
cide Fungicide and Rodenticide Act to have a degree 
or some formal experience in chemical engineering. 
Similarly, knowledge or experience in the construc- 
tion industry would aid a neutral in mediating the 
settlement of a construction dispute. Depending 
upon the nature of the issues involved, it may or 
may not be necessary to have such technical exper- 
tise in order to understand and communicate the 
conflicting positions of the disputants in a way 
that will promote settlement. 

4. Knowledge of the statutory/regulatory scheme . 
Particularly in regulatory negotiation, familiarity 
with the legal framework in which the regulation is 
being developed may be an important criterion in 
selecting a neutral. In the arbitration setting, 
the Supreme Court upheld mandatory arbitration of 
Medicare claims by employees of private insurance 
carriers in part on the basis that agency regula- 
tions required such arbitrators to possess "a 
thorough knowledge of the Medicare program and the 
statutory authority and regulations upon which it 
is based . . . ."-^ 

5. " Absolute Neutrality ". Screening out potential 
neutrals who have a personal or financial interest 
in the proceeding will always be an important step 



See Harter, Regulatory Negotiation; The Experience So Far , 
Resolve, Conservation Foundation 6-7 (Winter 1984); Perritt, 
Analysis of Four Negotiated Rulemaking Efforts , 1985 Recom- 
mendations and Reports of the Administrative Conference 637, 
712-26. 

Schwieker v. McClure, 456 U.S. 188, 199 (1982) (emphasis 
in original) . 



286 RESOURCES AND LOGISTICS 



870 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

in the selection process. But some agencies have 
gone beyond such basic conflict-of-interest con- 
siderations by insisting upon neutrals who have 
no past or present affiliation with any side of 
the controversy. Such insistence upon "absolute 
neutrality" could be an extremely limiting quali- 
fication, particularly since many of the persons 
who are most knowledgeable in a given regulatory 
scheme have been affiliated with either government 
or private industry, and sometimes both. 

B. Agency Experience 

1. Minitrials 

a. Corps of Engineers 

The agency that has had the most experience with minitrials 
is the U.S. Army Corps of Engineers. -^^ In its Engineer Circular 
No. 27-1-3, dated September 23, 1985, the Corps has set forth 
detailed guidelines for the use of minitrials, together with a 
model "Minitrial Agreement" .-L^^ The Engineer Circular specifies 
that the minitrial neutral advisor "must be an impartial third 
party with experience in government contracting and litiga- 
tion, "-^-i^ In the two minitrials that the Corps has successfully 
completed to date, it has used a retired judge from the United 
States Court of Claims and a university professor of government 
contracts law as neutral advisors. Corps attorneys who are 
responsible for the minitrial program have stated their desire, at 
least at the initial stages of the minitrial program, to utilize 
neutral advisors who have no present or past affiliation with 
either the government or private construction contractors. This 
means that in the short term, the pool of persons who have the 
requisite neutrality and government contracts expertise to serve 
as neutral advisors for Corps of Engineers minitrails will be 
limited. 

b. Department of Justice 

On June 19, 1986, the Commercial Litigation Branch of the 
Department of Justice issued a "Policy Concerning the Use of 



-^ See Ruttinger, Army Corps of Engineers Settles $45 Million 
Claim at Minitrial , Alternatives to the High Cost of Liti- 
gation. Center for Public Resources, vol. 3, no. 8 (August 
1985). 

-i-^ A copy of the Corps Circular, together with the model agree- 
ment, is reproduced as Appendix A to this Report. 

■»-»-' Engineer Circular No. 27-1-3 at 3. 



SERVICES OF NEUTRALS 287 



ADR "NEUTRALS" 871 

Mini-trials,"-!-^ which encouraged Branch attorneys "to assess 
cases assigned to them for the potential for resolution by mini- 
trial . . . ."i^y The Policy provides that, where appropriate, 
the parties may agree upon a neutral advisor to assist the 
management officials in resolution of the dispute. With respect 
to the qualifications of the neutral advisor, the Policy states as 
follows: 

The neutral advisor should be a person with 
either legal or substantive knowledge in a 
relevant field. The neutral advisor should 
have no prior involvement in the dispute or 
the litigation and must possess no interest in 
the result of the mini-trial. J-*^ 

c. Department of the Navy 

The Department of the Navy has embarked upon the experimental 
use of minitrials to resolve disputes arising under Navy con- 
tracts. The Navy has expressed a preference for utilizing admin- 
istrative judges from the Armed Services Board of Contract Appeals 
("ASBCA") to serve as neutral advisors. The ASBCA is one of the 
forums designated by the Contract Disputes Act of 131B^^^ to 
conduct hearings and render decisions on disputes arising under 
government contracts. However, in its first minitrial of a 
contract dispute, the Navy utilized the services of the same 
university professor of government contracting who had earlier 
been employed by the Corps of Engineers as a neutral advisor. 

d. Department of Energy 

The Energy Department has conducted a minitrial on a contract 
claim in which the neutral advisor was a former ASBCA judge who 
was practicing government contracts law with a private firm.-*-^ 



^~^ Copy of this Policy is reproduced as Appendix B to this 
Report. 

-LX/ Commercial Litigation Branch Policy Concerning the Use of 
Mini-trials (June 19, 1986) at 1. 

J^ Id. at 3. 

i^ 41 U.S.C. S 601 et seq . 

^■^ It is also possible to conduct a minitrial without utilizing 
a neutral advisor at all. This was done to resolve a con- 
tract dispute between the National Aeronautics and Space 
Administration and TRW Inc. See "Minitrial Successfully 
Resolves NASA-TRW Dispute," The Legal Times (September 6, 
1982), p. 19. 



288 RESOURCES AND LOGISTICS 

872 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

2 . Negotiated Rulemakings 

Neutrals for "reg neg" procedures have come from several 
sources. In some cases, agencies have tapped the private sector 
for convenors and facilitators. In other cases, government per- 
sonnel, including an FMCS mediator and a staff attorney for the 
rulemaking agency, have performed these functions. 

a. Department of Interior 

In January 1986, the Department of Interior issued a Request 
for Proposals for convening and facilitation services for negoti- 
ated rulemaking on air quality regulations for the California 
Outer Continental Shelf ("OCS"). The evaluation factors for this 
award are detailed, and include specific ability and achievement 
as a facilitator, knowledge of the Outer Continental Shelf Oil and 
Gas Program and the Outer Continental Shelf Lands Act, understand- 
ing of the needs of the Department of Interior and other parties 
to the rulemaking, general dispute resolution skills, and "prac- 
tical knowledge of the convening/facilitating process. "^-^ 

b. Council on Environmental Quality 

In April 1986, the Executive Office of the President, on 
behalf of the Council on Environmental Quality ("CEQ"), issued a 
Request for Proposals ("RFP") for an indefinite quantity contract 
to supply various types of services in connection with negotiated 
rulemaking, including convening, facilitating, documenting, 
resource support, analytic support, and training. The RFP speci- 
fied that the overall purpose of the contract is "to assist EPA, 
CEQ, and other participating agencies with joint projects in the 
area of regulatory negotiations, "-i-*^ In setting forth evaluation 
criteria for award, the solicitation states that technical propo- 
sals will be evaluated in part according to "the availability of 
an appropriate disciplinary mix of environmental scientists and 
technicians to accomplish tasks required under the scope of 
work."i^ 

One of the successful offerors in the CEQ procurement, the 
Conservation Foundation, proposed a team approach in which each 
regulatory negotiation would be staffed by a "senior dispute 
resolution professional" and appropriate technical personnel 



^^ Solicitation No. 3292, January 4, 1986, S M-2. Section M of 
the Solicitation, "Evaluation Factors for Award," is repro- 
duced as Appendix C to this Report. 

-u^ Solicitation No. EOPOA-86-05, April 10, 1986, S C.2, p. 13. 

-i-i^ Id. S M.l. Section M of the Solicitation, "Evaluation 
Factors for Award," is reproduced as Appendix D to this 
Report. 



SERVICES OF NEUTRALS 289 



ADR "NEUTRALS" 873 

selected in consultation with the agency. -2-^ The Foundation's 
proposal provided the following rationale for combining mediation 
and technical expertise: 

It is hard to imagine an environmental media- 
tor being effective unless he or she has some 
expertise in the substance and the history of 
the issues at hand and, therefore, some under- 
standing of the implications that various 
"process" choices have on the parties, e.g. in 
helping the affected interests decide how best 
to represent themselves, how to define the 
scope of issues to be negotiated, or what 
protocols to adopt. The stability both of the 
process and of a consensus agreement, if 
reached, is increased when the parties make 
these decisions in a well informed way.-^-*^ 

During negotiations leading up to contract award, the agen- 
cies (CEQ and EPA) took the position that inclusion of technical 
personnel on the regulatory negotiation team would not be accept- 
able. The rationale for the agencies' position was that while 
dispute resolution process skills are critical to the success of a 
negotiated rulemaking, technical expertise is not only unnecessary 
but, in some cases, counterproductive. Officials in charge of 
EPA's negotiated rulemaking project believe that if the negoti- 
ating group feels that it needs the assistance of a technical 
expert, the group itself should select that expert. 

3. Summary 

From the foregoing, it appears that during the experimental 
stages of ADR and negotiated rulemaking, agencies have sometimes 
opted for rather restrictive definitions of the qualifications 
required for neutrals. In some of the early regulatory negoti- 
ations, agencies have sought neutrals with a combination of skills 
that only very few individuals possess, including specific expe- 
rience in facilitation of negotiated rulemakings and technical 
expertise in the subject matter of the rulemaking proceeding. In 
some cases, organizations have been able to respond to these 
demanding requirements through a "team approach," in which the 
skills of dispute resolution personnel and technical experts are 
combined. The agency that has the most experience in regulatory 
negotiation, the EPA, has consciously eschewed technical expertise 
as a criterion for selection of neutrals and has emphasized 
generic dispute resolution skills as the controlling factor. 



Conservation Foundation, Technical Proposal EOPOA-86-05 -- 
Regulatory Negotiation Support Services, May 28, 1986, p. 7, 

Id. 



290 RESOURCES AND LOGISTICS 



874 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

In the case of the Corps of Engineers minitrial program, the 
Corps has consciously selected neutral advisors who are both 
"truly neutral" and expert in government contracts law applicable 
to the disputes. One goal of this approach is to isolate the 
minitrial process from political criticism at the early stages of 
its development. As the program progresses and the use of mini- 
trials becomes more routine, the qualifications may be loosened, 
thus broadening the pool of available neutrals. 

C. Qualifications Required by Government Dispute 
Resolution Agencies 

1. Federal Mediation and Conciliation Service 

The basic statutory charter of FMCS is set forth in Section 
203 of the Labor-Management Relations Act of 1947: 

It shall be the duty of the Service, in order 
to prevent or minimize interruptions of the 
free flow of commerce growing out of labor 
disputes, to assist parties to labor disputes 
in industries affecting commerce to settle 
such disputes through conciliation and medi- 
ation. -^-^ 

FMCS employs approximately 240 mediators, stationed at 75 
separate locations. The basic qualification for employment as an 
FMCS mediator is seven years experience in collective bargaining 
and/or labor-management relations. FMCS operates an intensive in- 
house training program for its mediators. 

2. Community Relations Service 

The function of the Community Relations Service ("CRS") is: 

To provide assistance to communities and per- 
sons therein in resolving disputes, disagree- 
ments, or difficulties relating to discrimina- 
tory practices based on race, color, or 
national origin which impair the rights of 
persons in such communities under the Consti- 
tution or laws of the United States or which 
affect or may affect interstate commerce.-^-i^ 



■"^ 29 U.S.C. S 173. Under the Health Care Amendments of 1974, 
FMCS is authorized to provide conciliation services to avert 
or minimize work stoppages in the health care industry. 
29 U.S.C. S 183. 

AJ^ 42 U.S.C. S 2000g-l. 



SERVICES OF NEUTRALS 291 



ADR -NEUTRALS" 875 

CRS employs a total of 60 to 70 "conciliators" in its ten 
regional offices. There are no specified qualifications for 
entry-level conciliators, and most of the training is on-the-job. 

D. Rosters Maintained By Private Organizations 

1. American Arbitration Association ("AAA") 

The AAA maintains panels from which arbitrators may be chosen 
by parties who have agreed to arbitrate a dispute or disputes. 
The AAA has established separate panels of arbitrators for use in 
various types of commercial disputes. For example, for disputes 
arising under construction contracts, the AAA maintains a Con- 
struction Industry Panel. Members of the Construction Industry 
Panel are persons recommended by the National Construction 
Industry Arbitration Committee as "qualified to serve by virtue of 
their experience in the construction field. "-^-^^ 

Federal agencies have from time to time used the AAA as a 
resource in establishing arbitration programs. For example, under 
the terms of the Superfund Statute, disputes arising out of claims 
against the fund are resolved by a Board of Arbitrators appointed 
by the President. -2-i>' The Act provides that each member of the 
Board "shall be selected through utilization of the procedures of 
the American Arbitration Association."-^-*^ 

The Federal Insecticide, Fungicide, and Rodenticide Act 
("FIFRA") authorizes the Environmental Protection Agency to use 
research data submitted by one manufacturer to register pesticides 
submitted by another manufacturer. The Act further provides that 
a manufacturer who depends upon data submitted by another firm to 
obtain registration must compensate that other firm, and that any 
disputes over the amount of compensation will be resolved through 
binding arbitration under the auspices of FMCS.-^-i-^ The statute 
requires that FMCS appoint an arbitrator from a roster of arbi- 
trators maintained by the Service, and that the procedures and 
rules of the Service shall be applicable. In turn, FMCS regu- 
lations have adopted the roster of arbitrators maintained by the 
AAA to resolve FIFRA compensation disputes and have designated 
that the AAA rules and procedures shall be used. -^-9^ The Supreme 



^■^ American Arbitration Association, Construction Industry 
Arbitration Rules (January 1, 1986) at 3. 

^^ Comprehensive Environmental Response, Compensation and Lia- 
bility Act of 1980, 42 U.S.C. S 9612(4)(A). 

■2-*^ Id. 

^^ FIFRA, S 3(c)(l)(D)(ii), 7 U.S.C. S 136a(C) (1) (D) ( i i ) . 

^-^ 29 C.F.R. S 1440.1. 



292 RESOURCES AND LOGISTICS 



876 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

Court upheld the FIFRA arbitration provision against consti- 
tutional challenge in Thomas v. Union Carbide Agricultural 
Products Co .-^-^ 

2. Center for Public Resources ("CPR") 

CPR is a private non-profit organization that is devoted to 
promoting the use of ADR to resolve commercial disputes, as well 
as disputes between private parties and the government. In 
furtherance of this purpose, CPR maintains a list of distinguished 
persons who are available to serve as mediators, arbitrators, or 
neutral advisors in resolving disputes through ADR. The CPR 
roster is a blue ribbon group consisting largely of retired 
federal judges, former cabinet officers, and other dignitaries. 

E. Conclusion 

Because the substantive and procedural aspects of ADR vary 
significantly from case to case, it would be virtually impossible 
to develop a generalized set of qualifications applicable to all 
dispute resolution proceedings. Rather, agencies will need to 
take a practical approach to the selection of neutrals, balancing 
the demands of the specific ADR proceeding against the long-range 
need to develop a broader base of experienced neutrals from which 
to draw. While the diversity of proceedings makes specific advice 
hazardous, certain general guidelines can be gleaned from agency 
experience to date: 

(1) Generic dispute resolution skills are an important 
prerequisite in most cases; insistence upon specific 
experience in the ADR process being pursued, however, 
many unnecessarily exclude persons whose general 
mediation skills are transferable to other contexts. 

(2) Familiarity with the applicable statutory and regulatory 
scheme is generally desirable, particularly in nego- 
tiated rulemaking. 

(3) Technical expertise should be required only when the 
substantive issues are so complex that the neutral could 
not effectively understand and communicate the parties' 
positions without in-depth technical knowledge. 

(4) Avoiding conflicts of interest is important, but requir- 
ing "absolute neutrality" may unduly restrict the field 
of potential neutrals to retired judges or university 
professors. 



U.S. , 105 S.Ct. 3325 (1985) . 



SERVICES OF NEUTRALS 293 

ADR "NEUTRALS" 877 

III. 

PROCUREMENT ISSUES 

A. The Federal Acquisition System 

In some circumstances, it may be possible for agencies to 
retain neutrals as experts, consultants, or special employees. ^-^ 
In most cases, however, neutrals' services must be acquired 
through contracting with the private individual or organization. 

Federal procurement of goods and services is a highly regu- 
lated form of contracting. The principal statutes are the Armed 
Services Procurement kct,^-^ which governs military procurements, 
and the Federal Property and Administrative Services Act of 
1949, -i-^ which governs procurements by civilian agencies. These 
statutes have undergone substantial revision in recent years, 
principally by the Competition in Contracting Act of 1984 
( "CICA" ) .-i-i/ CICA mandates that as a general rule, federal agen- 
cies conducting a procurement for property or services "shall 
obtain full and open competition through the use of competitive 
procedures . . . . "J-^v Prior to CICA, the Armed Services 
Procurement Act and Federal Property and Administrative Services 
Act expressed a preference for formally advertised procurements, 
in which competitors submit sealed bids and the lowest "responsive 
and responsible" bidder wins the contract. The prior statutes 
provided that agencies could negotiate a contract rather than 
engage in formal advertising if one of 17 exceptions were present; 
one of those exceptions was contracts for "personal or pro- 
fessional services. "-^-^ 



J-S^ See discussion in Section III.D.4., infra . 

■i-^ 10 U.S.C. S 2201 et seg (1982), as amended by Pub. L. No. 
98-369, Title VII, 98 Stat. 1175. 

J-^ 41 U.S.C. S 251 et seg (1982), as amended by Pub. L. No. 
98-369, Title VII, 98 Stat. 1175. 

J-i^ Pub. L. No. 98-369, Title VII, 98 Stat. 1175. Other major 
procurement reform statutes of recent vintage include the 
Small Business and Federal Procurement Competition Enhance- 
ment Act of 1984, Pub. L. No. 98-577, and the Defense 
Procurement Reform Act of 1984, Pub. L. No. 98-525. 

^-^ Id., s 303(a)(1). 

J-i^ Armed Services Procurement Act, 10 U.S.C. S 2304(a)(4) 
(1982). 



294 RESOURCES AND LOGISTICS 



878 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

CICA mandates full and open competition in any form, whether 
it be by formal advertising or negotiation.-^-^^ The Act further 
provides that agencies may use procedures other than competition 
only when one of seven specific exceptions exists. These excep- 
tions include situations when "the property or services needed by 
the executive agencies are available from only one responsible 
source and no other type of property or services will satisfy the 
needs of the executive agency . . ."or "the executive agency's 
need for the property or services is of such an unusual and 
compelling urgency that the government would be seriously injured 
unless the executive agency is permitted to limit the number of 
sources from which it solicits bids or proposals . . . ."J-i^ 
Procurements under one of the seven exceptions to competition are 
referred to as "sole source." CICA eliminated the former excep- 
tion for procurements of personal and professional services. 

Under the Office of Federal Procurement Policy Act,-^-^ both 
military and civilian agency procurements are governed by a 
unified regulatory system, the Federal Acquisition Regulation 
{FkR" ) .-^-^ The FAR sets forth detailed procedures for conducting 
federal agency procurements. For procurements over $10,000, 
agencies generally must publish a synopsis of the proposed 
procurement in the Commerce Business Daily ("CBD") at least 15 



■i-^ CICA now refers to formal advertising as "sealed bids." 
Under the statute, sealed bids are appropriate in the 
following circumstances: 

(i) time permits the solicitation, submission, and 
evaluation of sealed bids; 

(ii) the award will be made on the basis of price and 
other factors; 

(iii) it is not necessary to conduct discussions with 
the responding sources about their bids; and 

(iv) there is a reasonable expectation of receiving more 
than one sealed bid. 

41 U.S.C. S 253(a)(2)(A); 10 U.S.C. S 2304(a)(2)(A). See 
also . 48 C.F.R. S 6.401(a) ( l)-(4 ) . 

J-i^ Id., S 303(c)(1) & (2). 

J^ 41 U.S.C. S 405(a). 

J-^ 48 C.F.R. , Chapter 1, Parts 1-53. Each agency has promul- 
gated supplements to the FAR to deal with that agency's 
unique acquisition problems. See , e.g. , DOD FAR Supplement, 
48 C.F.R. Chapter 2. 



SERVICES OF NEUTRALS 295 



ADR -NEUTRALS" 879 

days in advance of issuing the solicitation. ■S-i>' After the CBD 
synopsis, agencies must allow at least 30 days response time for 
receipt of bids or proposals.-*-^ The agency's evaluations of bids 
or proposals usually takes a minimum of 30 days, although no 
minimum time is specified in the regulation. Thus, a competitive 
procurement under the procedures specified by FAR can be expected 
to take a minimum of two to three months. 

The FAR also specifies procedures for sole source procure- 
ments — that is, non-competitive procurements conducted under one 
of the seven exceptions established by CICA. In order to conduct 
a sole source procurement, the agency's contracting officer must 
provide a written justification for negotiating with only one 
source and must obtain the approval of his superiors in the pro- 
curement chain, at an increasingly higher level depending upon the 
size of the procurement .-i-^ The justification must contain, among 
other things, an identification of the statutory authority for 
proceeding on a basis other than full and open competition; a 
demonstration that "the proposed contractor's unique qualifi- 
cations or the nature of the acquisition requires use of the 
authority cited;" a description of efforts made to ensure soli- 
citation of offers "from as many potential sources as practic- 
able;" and a determination that the anticipated cost of the 
government will be "fair and reasonable, "-^-i^ In addition, the 
contracting officer must conduct a "market survey" to determine 
whether other qualified sources capable of satisfying the 
government's requirement exists. -i-*^ The written justification for 
a sole source procurement is public information that is available 
for inspection by disappointed bidders, among others. ^-^ 

The competitive requirements of CICA are enforceable through 
a number of different actions available to disappointed bidders or 



•»-a^ 48 C.F.R. s 5.201(a) and S 5.203(a). The requirement for a 
CBD synopsis is imposed by the Small Business Act, 15 U.S.C. 
S 637(c) and the Office of Federal Procurement Policy Act, 
41 U.S.C. S 416. The Continuing Resolution for Appropria- 
tions FY1987 contains an exemption for solicitations between 
$10,000 and $25,000 when the agency reasonably expects to 
receive at least two offers from responsive and responsible 
offerors. Pub. L. No. 99-500, October 18, 1986, Title IX, 
Section 922. 

A^ 48 C.F.R. S 5.204(b). 

^-^ 48 C.F.R. SS 6.303-2, 6.304. 

A^ 48 C.F.R. S 6.303-2(a). 

-»^ 48 C.F.R. SS 6.303-2(a)(8), 7.101. 

A^ 48 C.F.R. S 6.305(1). 



296 RESOURCES AND LOGISTICS 



880 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

offerors. An interested party who alleges a violation of a pro- 
curement statute or regulation may file a protest with the Comp- 
troller General. -1-^ When such a protest is filed, the agency must 
suspend award or performance of the contract until the protest has 
been decided, unless the head of the agency finds that award or 
performance is warranted because of "urgent and compelling cir- 
cumstances."^-^ For procurements of automatic data processing 
equipment, such protests, with similar suspension provisions, may 
be filed with the General Services Board of Contract Appeals.-*-^ 
In addition, under the Federal Court Improvements Act of 1982, 
disappointed bidders or offerors may seek to enjoin award of a 
contract allegedly tainted by illegal action by filing suit in the 
U.S. Claims Court. -*-^ Traditionally, federal district courts have 
also entertained suits to enjoin the award or performance of 
federal contracts when the agency allegedly violated its mandate 
to promote full and open compet ition.-^-s^ 

B. Issues in Contracting for Neutrals' Services 

The overriding requirement of free and open competition, 
together with the detailed acquisition procedures prescribed by 
the FAR, raise a number of issues when agencies seek to acquire 
the services of neutrals. The first and most obvious issue is 
time. For any procurement over $10,000, a notice of the solici- 
tation must be placed in the CBD, the agency must wait 15 days 
before issuing the solicitation, and 30 days must pass before bids 
or offers can be received. When the time for evaluating proposals 
is added, the process consumes a minimum of two to three months. 
Practically speaking, most fully competitive negotiated procure- 
ments take several months. In the case of the competitive pro- 
curement for convening and facilitating services conducted by the 
Department of Interior in connection with the California Outer 
Continental Shelf rulemaking, the entire procurement process, from 
development of the terms of the solicitation through the award of 
the contract, took over a year. 

The protracted nature of the standard procurement process is 
often inconsistent with the goals of ADR and negotiated 



i-^ 31 U.S.C. S 3552. 

■1^ 31 U.S.C. S 3553. 

i^ 40 U.S.C. S 759(h) . 

^^ 28 U.S.C. S 1491(a)(3). 



See , Control Data Corporation v. Baldrige, 655 F.2d 283 (D.C. 
Cir.), cert, denied , 454 U.S. 881 (1981;; Merriam v. Kunzig, 
476 F.2d 1233 (3rd Cir.), cert, denied . 414 U.S. 911 (1973); 
Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C. 
Cir. 1970). 



SERVICES OF NEUTRALS 297 



ADR "NEUTRALS" 881 

rulemaking. The very purpose of ADR is to avoid the delays 
inherent in the normal litigation process. Introducing several 
months of delay while the services of a neutral are procured could 
be viewed as self-defeating. Similarly, a lengthy acquisition 
process for the convenor or facilitator may be unacceptable when 
an agency is seeking to expedite the development of rules affect- 
ing the environment or health and safety. 

A second problem is that, as discussed above, the requirement 
of "full and open competition" may be inconsistent with the 
agency's need to acquire the services of a neutral who meets a 
number of specific criteria. Particularly at the formative stages 
of ADR and negotiated rulemaking, there are only a handful of 
individuals and organizations that have the combination of speci- 
fic experience in the procedure plus technical expertise in the 
substantive issues. To the extent such qualities are important to 
successful resolution of the issue, the field of available 
neutrals may be very limited, until further experience results a 
development of a broader base. In the case of neutral advisors 
for minitrials, the fact that the neutral is generally selected by 
agreement between the private party and the government may mean 
that there is only one "qualified source." Yet the market sur- 
veys, sole source determinations, and gamut of agency approvals 
required by Parts 6 and 7 of the FAR may make it difficult for an 
agency to proceed on a sole source basis in a timely fashion. -5-*^ 

A third issue arises with respect to the consideration of 
price in the evaluation of proposals. CICA mandates that the con- 
tract will be awarded to the "responsible source whose proposal 
was most advantageous to the United States, considering only price 
and the other factors included in the sol icitat ion. "-^-^^ One of 
the principal purposes of full and open competition is to obtain 
the lowest available price for the federal government .-^-^^ The 
requirement of some form of price competition may be inconsistent 
with the need to obtain the services of neutrals who have the 
requisite experience and reputation, as well as the neutrality, to 
gain the confidence of the parties and bring delicate negotiations 



^-^ In addition, the Comptroller General has stated that sole 

source procurements under CICA will be closely scrutinized. 
Daniel H. Wagner Associates, Inc., B-220633, 86-1 CPD II 166 
(Feb. 18, 1986); WSI Corp., B-220025, 85-2 CPD II 626 (Dec. 4, 
1985). 

•i^ Pub. L. No. 98-369, S 2711(d)(4), 41 U.S.C. S 253(b) (d) ( 4) . 

^-^ See Control Data Corporation v. Baldrige, supra note 50, 
655 F.2d at 295. 



298 RESOURCES AND LOGISTICS 



882 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

to a satisfactory cone lus ion. -i-*^ The FAR is at least of some help 
in this regard because it recognizes that price competition may 
not be appropriate in certain circumstances, including 
acquisitions of "professional services": 

While the lowest price or lowest total 
cost to the Government is properly the decid- 
ing factor in many source selections, in cer- 
tain acquisitions the Government may select 
the source whose proposal offers the greatest 
value to the Government in terms of perform- 
ance and other factors. This may be the case, 
for example, in the acquisition of research 
and development or professional services, or 
when cost-reimbursement contracting is anti- 
cipated.-*-^ 

Finally, some of those contacted in connection with this 
study expressed concern that the services of neutrals could be 
considered "personal services," As a general rule, the government 
must secure personal services through employment rather than 
contract. Agencies are not permitted to award personal services 
contracts in the absence of specific statutory author izat ion. -^-^ 
These restrictions do not appear to be a significant concern under 
the regulatory definition of "non-personal services contract": 

[a] contract in which the personnel rendering 
services are not subject, either by the con- 
tract's terms or by the manner of its admini- 
stration, to the supervision and control 
usually prevailing in relationships between 
the Government and its employees.-*-^ 



^-^ Acquisition of the services of neutrals is at least roughly 

parallel to procurement of architect/engineer services, which 
is governed by the Brooks Act. 40 U.S.C. SS 541-44. The 
Brooks Act provides that "the agency head shall negotiate a- 
contract with the highest qualified firm for architectural 
and engineering services at compensation which the agency 
head determines is fair and reasonable to the Government." 
40 U.S.C. S 544(a) (emphasis added). 

ii/ 48 C.F.R. S 15.605(c). 

i^ 48 C.F.R. S 37.104(a), (b) . 

A^ 48 C.F.R. S 37.101. 



SERVICES OF NEUTRALS 299 



ADR "NEUTRALS" 883 

Since neutrals by definition act independently and are subject to 
no one's supervision, their services can generally be regarded as 
"non-personal . "-*-&>' 

C. Case Studies 

1. Corps of Engineers Minitrials 

The minitrial has several distinctive features that dictate 
the procurement procedures to be followed. First, a minitrial is 
by definition an extremely abbreviated hearing before senior 
executives of the two parties and the neutral advisor, if one is 
employed. Under the Corps' model minitrial agreement, the pro- 
ceeding is scheduled to last two days, with a limited period for 
negotiating a settlement thereafter. -^-^ Second, the government 
and the private party to the dispute generally share the cost of 
the neutral advisor's services.-*-^ Third, the agency and the 
private party must agree on the selection of the neutral. 

Given the first two factors (the abbreviated nature of the 
minitrial and equal sharing of costs by the private parties), 
acquisition of the services of the neutral advisor should seldom 
if ever cost the government more than $10,000, at least at current 
prices. This means that some of the formalities of the procure- 
ment process can be dispensed with. Procurements under $10,000 
need not be advertised in the CBD.-i-i-' In addition, the low-dollar 
amount of neutral advisor acquisitions means that agencies can 
avail themselves of the small purchase procedures (under $25,000) 
of FAR Part 13.1. These procedures allow the agencies to procure 
on a more informal basis, such as soliciting quotations orally 
rather than through a formal request for proposals. The Corps 
used the small purchase procedures, without a CBD announcement, in 



^-^ See 61 Comp. Gen. 69, 72-74 (1981) (agency authorized to 
contract for legal services because law firm acted as an 
independent contractor and was not subject to agency super- 
vision) . 

^-^ Engineer Circular No. 27-1-3 at A-8. The first Corps mini- 
trial required two days of hearings while the second lasted 
approximately three days. See Army Engineers Succeed in 
First Minitrial , Alternatives to the High Cost of Litigation, 
Center for Public Resources, vol., 3, no. 3 at 1 (March 1985); 
Ruttinger, Army Corps of Engineers Settles $45 Million Claim 
at Minitrial , Alternatives to the High Cost of Litigation, 
Center for Public Resources, vol. 3, no. 8 at 1 (August 
1985). 

■«-i^ Engineer Circular No. 27-1-3 at A-4, 1 6. 
A^ 48 C.F.R. S 5.201(a). 



300 RESOURCES AND LOGISTICS 



884 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

acquiring the services of neutral advisors for both of its prior 
minitrials. The Department of the Navy used the same procedure in 
retaining a neutral advisor for its minitrial of a cost allow- 
ability dispute. 

2. Department of Interior PCS Negotiated Rulemaking 

As noted above, the Department of Interior used full competi- 
tive procedures to acquire convening/facilitating services for 
regulatory negotiation of environmental rules applicable to the 
California DCS development. This involved the development and 
issuance of a 62-page request for proposals, which detailed the 
nature and scope of the services to be provided as well as the 
evaluation factors for award. An announcement of the solicitation 
was published in advance in the CBD. Seven firms submitted offers 
on the solicitation, followed by detailed evaluation and negotia- 
tions. Ultimately, a cost-reimbursement type contract was awarded 
to the Mediation Institute of Seattle, Washington. 

The evaluation factors for award in the solicitation focused 
upon the experience and technical expertise of the offerors. 
Points were assigned to each of the five separate categories, 
comprising experience (30 points), understanding of the problem 
(25 points), dispute resolution skills (25 points), technical 
approach (10 points), and personnel staffing (10 points). No 
numerical weight was assigned to the cost proposal. The solici- 
tation stated as follows: 

In evaluating proposals for a cost reimburse- 
ment type contract, estimated costs of con- 
tract performance and proposed fees will not 
be considered as controlling factors, since in 
this type of contract advance estimates of 
costs may not provide valid indicators of 
final actual costs. There is no requirement 
that cost reimbursement type contracts be 
awarded on the basis of either (a) the lowest 
proposed cost, (b) the lowest proposed fee, or 
(c) the lowest total estimated cost plus 
proposed fee.-*-^ 

The solicitation went on to state that the cost proposal was ■ 
required to reflect a "realistic and reasonable approach" to the 
contract. 



-i-^ Solicitation No. 3292, S M-3, pp. 66-62. See 48 C.F.R. 
S 15.605(d). 



SERVICES OF NEUTRALS 301 

ADR "NEUTRALS" 885 

3 . CEQ Procurement of Regulatory Negotiating Services 

a. Historical Background 

EPA has been one of the most active agencies in promoting 
regulatory negotiation. EPA has several "reg negs" in process and 
has used the procedure to complete two sets of regulations: non- 
conformance penalties under Section 206(g) of the Clean Air Act 
and pesticide exemptions under Section 18 of the FIFRA.-^-^^ In the 
case of the nonconformance penalties rulemaking, EPA employed the 
services of ERM-McGlennon Associates as the convenor/facili- 
tator.-*-*-^ In the second rulemaking, regarding pesticide exemp- 
tions, ERM-McGlennon Associates was used as the convenor, but the 
facilitator was an employee of EPA's Office of General Counsel. 
In acquiring the services of the outside convenor/facilitator, EPA 
utilized a basic ordering agreement, which is a form of 
contracting described in FAR Subpart 16.7. 

b. The CEQ Procurement 

In April 1986, CEQ undertook to acquire convening, facilitat- 
ing and related services for use by EPA in its ongoing regulatory 
negotiation project, and by other agencies interested in launching 
similar projects. CEQ did so pursuant to its statutory role as a 
clearinghouse for hiring experts and consultants in furtherance of 
environment policy.-^-^ The procurement was conducted by a 
contracting officer for the Executive Office of the President 
("EOP"). The EOP synopsized the solicitation in the CBD, and 
received some 200 requests for the RFP. Ultimately, however, only 
four organizations submitted offers. 

The RFP solicited proposals on seven different categories of 
convening, facilitating, and related services.-*-^ The RFP contem- 
plated the award of one or more indefinite quantity contracts for 
a one-year period, plus two option years. Under the terms of the 
RFP, the agency could have awarded separate contracts for each of 
the seven different types of services. In fact, one contract was 
awarded for six categories of services to the Conservation Foun- 
dation, a nonprofit environmental research organization, and a 
separate contract for the seventh category was awarded to the 



-S-i^ See Perritt, Analysis of Four Negotiated Rulemaking Efforts , 
1985 Recommendations and Reports of the Administrative Con- 
ference 637, 726-745. 

^-^ Mr. McGlennon was an experienced environmental mediator and 
former administrator of EPA Region 1. 

■i-s^ 42 U.S.C. S 4343. 

■*-^ These services included convening, facilitating, documenting, 
resource support, analytic support, and training. 



302 RESOURCES AND LOGISTICS 



886 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

National Institute for Dispute Resolution ("NIDR"). While the RFP 
described the regulatory negotiation project as arising out of the 
program initiated by EPA, the terms of the RFP made clear that the 
services being procured were for the purpose of assisting EPA, the 
Office of Environmental Quality ("OEQ") and "other participating 
agencies" with joint projects in regulatory negotiations. 

c. The Request for Proposals 

Under the terms of the RFP, offerors were to propose a roster 
of professionals who would be available to perform the various 
services called for under the contract. These categories included 
"professional," defined as convenors, facilitators, analysts, and 
trainers, and "administrative personnel," defined as documentors, 
direct support staff, resource support staff, and management/ 
clerical positions. For each category and subcategory of person- 
nel, the offeror was to propose a base period hourly rate, and 
rates for the first and second options under the contract. The 
offerors were also required to propose percentage ceiling rates 
for such items as fringe benefits, overhead, general and admini- 
strative expense, and profit/fee. As required by the regulations 
governing indefinite quantity contracts, -^-^ the RFP specified a 
minimum order quantity of $5,000 and maximum of $175,000. 

The evaluation section of the RFP made it clear that each of 
the seven discrete categories of services ( i.e. , convening, facil- 
itating, document support, etc.) would be evaluated separately. 
The EOP reserved the right to award separate contracts for each 
category or more than one contract for a given category. The 
evaluation factors were stated as follows: 

The Technical proposals will, be evaluated 
according to the offeror's understanding of 
the requirements of the Solicitation and the 
availability of an appropriate disciplinary 
mix of environmental scientists and techni- 
cians to accomplish tasks required under the 
scope of work .... The Technical Proposal 
will also be rated as to the approach, metho- 
dology, and accuracy of Work Plan for the 
Benchmark Task Order. 

The Cost Proposal will be evaluated according 
to the relative costs set forth in the tables 
prepared in accordance with Section B of the 
RFP.A^ 



-ti/ 48 C.F.R. S16. 504(a)(1). 

i^ Solicitation No. EOPOA-86-05, S M.l, p. 85. 



SERVICES OF NEUTRALS 303 



ADR -NEUTRALS" 887 

The RFP contained a "benchmark task order" describing a hypo- 
thetical EPA negotiated rulemaking-*-i>' Each offeror was required 
to submit a work plan outlining the offeror's proposed approach, 
staffing, management plan, and schedule for this hypothetical task 
order. 

Under the terms of the indefinite quantity contract, work is 
commissioned on particular regulatory negotiations through the 
issuance of task orders. The task order defines the scope of the 
work required, the estimated period of performance, and the esti- 
mated level of effort. -^-^ Within the time period specified in 
each task order (expected to be a week or two), the contractor is 
required to submit a proposed work plan outlining the contractor's 
objectives, approach, statement of work, deliverables, staffing 
arrangements, management plan, schedule, and cost/price assump- 
tions. -^-l/ The contractor is also required to submit a separate 
cost analysis providing a breakdown of costs and specifying the 
type of contract desired, i.e. , firm fixed-price, cost plus fixed- 
fee, or labor hour. It is contemplated that the agency can 
negotiate with the contractor regarding each aspect of the work 
plan, including the personnel who are proposed. The RFP 
specifically states that the government reserves the right "to 
award the task orders in any order, or not to award. "-^-^ 

In the eyes of the EOP, CEQ, and EPA, the principal advantage 
to this indefinite quantity contract is its flexibility. Rather 
than having to go through a fully competitive process for each and 
every regulatory negotiation, the EOP conducted a competitive 
procurement for the initial indefinite quantity contract. Under 
the terms of the contract, task orders can be issued and nego- 
tiated with the contractor for each separate rulemaking within a 
matter of weeks, thus shortening the period required to engage the 
services of a convenor or facilitator. By engaging groups like 
the Conservation Federation and National Institute for Dispute 
Resolution, CEQ, EPA, and other agencies have ready access to the 
rosters of experienced professionals that those groups have 
retained as employees or subcontractors. 



^•-^ The Benchmark Task Order is reproduced as Appendix E to this 
Report. 

-^-a^ Solicitation No. EOPOA-86-05, S H.9, p. 27. 

-2-1^ The Benchmark Task Order in the RFP states that a firm fixed- 
price order is anticipated. 

-i-i^ Solicitation No. EOPOA-86-05, S H.9, p. 28. 



304 RESOURCES AND LOGISTICS 

888 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

4 . Use of Government "Neutrals" 

Another possibility for obtaining services of neutrals is to 
utilize government personnel. This has been done in at least two 
cases: the FAA negotiated rulemaking regarding flight and duty 
time for aircraft crews and the EPA's regulatory negotiation 
regarding pesticide exemptions. In the former case, a mediator 
from FMCS was employed as the convenor/facilitator; in the latter 
case, an employee from the EPA's Office of General Counsel was 
used. In addition, OSHA is now undertaking its second negotiated 
rulemaking with the intent of using an FMCS mediator .-^-i^ 

D. Evaluation of Techniques 

1 . Full Competitive Procurement 

The most straightforward approach to acquiring the services 
of a neutral is that utilized by the Department of Interior for 
the California OCS rulemaking. The agency conducted an open com- 
petition for the contract in which seven offerors submitted pro- 
posals. The agency also ensured that a qualified source would be 
selected by specifying detailed technical evaluation factors, and 
making these technical factors the exclusive basis for evaluation 
of the proposals. By obtaining cost proposals but not making cost 
an evaluated factor, the agency avoided potential problems inher- 
ent in selecting a provider of professional services on the basis 
of cost rather than professional experience or expertise. 

However, the principal disadvantage of a fully competitive 
procurement is the time and effort required, which in most cases 
make full competition impractical for an individual dispute reso- 
lution or regulatory negotiation. From start to finish, the 
Interior Department procurement of convening and facilitating 
services took over a year. The successful offeror submitted a 
detailed, two-volume proposal that took months to prepare and was 
estimated to cost several thousand dollars. Thus, while fully 
competitive procurements are the most desirable and compliant with 
statutory requirements, they may be impractical when time is of 
the essence. 

2 . Small Purchases 

Use of the small purchase procedures provided for in FAR 
Subpart 13.1 should work for most procurements of neutral advisor 
services, and possibly in the case of small arbitrations and regu- 
latory negotiations. As noted, in virtually all cases, contracts 
with minitrial neutral advisors should involve expenditure of 



In the past, agencies that have used FMCS mediators have 
paid a pro rata share of the mediator's salary through an 
inter-agency transfer of funds pursuant to the Economy Act, 
31 U.S.C. S 1535. 



SERVICES OF NEUTRALS 305 



ADR "NEUTRALS" 889 

under $10,000 by the government. Thus, no announcement in the CBD 
is required, and the streamlined procedures for small purchases 
can be utilized. In its two successful minitrials, the Corps of 
Engineers has contracted with the neutral advisor through a pur- 
chase order issued based upon an oral quotation. In each case, 
the purchase order was accompanied by a tripartite agreement among 
the neutral advisor, the government, and the private party to the 
dispute.-i-4^ 

Even for small purchases, however, agencies are required to 
obtain competition "to the maximum extent practicable."-^-^ Soli- 
citations may be limited to one source only "if the contracting 
officer determines that only one source is reasonably avail- 
able. "-^-^ However, unlike the procedures specified in Parts 6 and 
7 of the FAR for larger procurements, sole source purchases under 
the small purchase procedures do not require a written deter- 
mination by the contracting officer or approvals by senior pro- 
curement officials. In the case of minitrial neutral advisors, 
sole source procurements should be justified on the basis of the 
need for prompt action to effect a settlement, the limitations on 
the number of qualified sources, and the fact that the selection 
of the neutral advisor must be approved in advance by the private 
party to the dispute. 

Similar factors may control the hiring of arbitrators and 
mediators -- i.e. , joint selection and sharing of fees by the 
agency and private party to the dispute. In arbitrations or 
mediations of smaller disputes that take a few days to resolve, 
the small purchase procedures should be available for acquisition 
of the neutral's services. 

3. Indefinite Quantity Contracts 

As noted above, the indefinite quantity contract used by the 
CEQ to procure convening and facilitating services for the EPA and 
other agencies is a flexible procedure. Under the regulations, 
this type of cor. tract ing may be used when "the Government cannot 
predetermine . . . the precise quantities of supplies and services 
that will be required during the contract period . . . . "JL-ZV -- 



^-^ A redacted copy of the Agreement for Services of Neutral 

Advisor utilized in one of the minitrials is reproduced in 
Appendix F hereto. 

^-^ 48 C.F.R. S 13.106(b)(1). 

-^ Id. 

-^-^ 48 C.F.R. S 16.504(b)(1). See generally Virden, Indefinite 
Delivery Contracts . Government Contractor Briefing Papers 
No. 78-2, Federal Publications (April 1978). 



306 RESOURCES AND LOGISTICS 



890 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

precisely the situation that may exist when an agency embarks upon 
a regulatory negotiation project. Full and open competition, as 
required by CICA and the procurement regulations, takes place in 
response to the RFP for the indefinite quantity contract. Once 
the contract has been awarded, acquisition of services for each 
separate regulatory negotiation is done through the task order/ 
work plan procedure described above. The contractor can respond 
to each task order much more quickly than if full competitive 
procedures were required for each separate rulemaking. 

Use of the indefinite quantity contract for this purpose 
raises several issues. First, the regulations specify that such 
contracts should be used only for "commercial or commercial- type 
products. "-^-S^ "Commercial product" is defined as something that 
is "sold or traded to the general public in the course of normal 
business operations at prices based on established catalog or 
market prices . . . ."J-U a "commercial-type product" is a 
commercial product that has been modified to meet some peculiar 
requirement of the government. A case could presumably be made 
that the mediation-type services provided by convenors and facil- 
itators are also sold or traded in the commerical market. It is 
less clear whether such services are sold "to the general public" 
at "established catalog or market prices". Since the "commercial 
product" restriction is not mandatory, however, it should not pose 
an insuperable barrier to the use of indefinite quantity contracts 
for ADR-related services. 

Second, the regulations require that an indefinite quantity 
contract specify a "minimum quantity" of the item to be procured, 
and further that such minimum quantity must be more than a 
"nominal" amount.-*-^ This is necessary to avoid an illusory 
contract under which the government has no obligation to do 
anything in return for the contractor's agreement to fill 
orders. -i-*^ In the regulatory negotiation and ADR context, it is 
obviously difficult to specify a minimum quant ity of services to 
be procured. In a somewhat parallel context, the Court of Claims 
upheld an indefinite quantity contract for various categories of 



J-J^ 48 C.F.R. S 16.504(b). 

i^ 48 C.F.R. S 11.001. 

■L!L/ 48 C.F.R. S 16.504(a)(2) 



■4^ See Mason v. United States, 615 F.2d 1343, 1346 n.5 (Ct. CI. 
T9iffO), citing , Willard Sutherland S. Co. v. United States, 262 
U.S. 489, 493 (1923). 



SERVICES OF NEUTRALS 307 



ADR "NEUTRALS" 891 

construction work where the "minimum quantity" specified in the 
contract was a payment of $5,000.-»-^ 

Third, the task order procedure specified in the RFP allows 
the agency and the contractor to negotiate the terms of each 
individual task order, including the personnel who will be 
assigned to a particular project and, presumably, the cost of 
those services. In the typical indefinite quantity contract for a 
commercial product sold at a catalog price, the agency issues an 
order for a given quantity and the contractor fills the order at 
the price specified in the contract. That price was, of course, 
established through competition for the initial contract. In the 
case of the EOP/CEQ procurement of convening and facilitating 
services, the mix of services, the personnel supplied to provide 
the services, and even the cost of the services (within the ceil- 
ings specified in the contract) are subject to negotiation for 
each individual task order. Both the government and the con- 
tractor have the right not to go forward with the particular task 
order if the detailed terms of the order and work plan cannot be 
agreed upon. This leaves the arrangement open to the criticism 
that each task order is in fact a separate procurement that should 
be conducted on a competitive basis, rather than through a de 
facto "sole source" process under the indefinite quantity con- 
tract. 

A further problem in this regard may be that the service 
providers in each case are subcontractors to the organization that 
is performing the indefinite quantity contract. By allowing the 
agency and the contractor to negotiate the identity of the "sub- 
contractor" for each separate task order, the indefinite quantity 
contract may in effect allow the agency to select a sole source 
for each separate regulatory negotiation without complying with 
the sole source justification procedures of the regulations. 

These potential problems may be ameliorated by the fact that 
the material terms of each work plan — including ceilings on cost 
and rates, identity of the service providers, and general approach 
and methodology — were defined in the proposals submitted in 
response to the competitive RFP. So long as the parties adhere tc 
those terms in negotiating individual task orders, sole source 
issues should be avoided. 

In summary, the EOP/CEQ's use of indefinite quantity con- 
tracts is an imaginative application of an existing procurement 



^-^ Mason V. United States, supra note 81. See also , Hemet 

Valley Flying Service Co. v. United States, 7 CI, Ct . 512 
(1985) (indefinite quantity contracts for flying services 
upheld, although contract required no minimum purchase of 
services, because contractor was paid a dollar amount to 
maintain the availability of his aircraft for government 
use) . 



308 RESOURCES AND LOGISTICS 



892 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

techique to the peculiar needs of the regulatory negotiation 
setting. 

4 . Other Potential Acquisition Techniques 

a. Basic Ordering Agreements 

Prior to the CEQ indefinite quantity contract, the EPA pro- 
cured convening and facilitating services for its regulatory 
negotiation project through basic ordering agreements under FAR 
Subpart 16.7. A basic ordering agreement is not itself a con- 
tract, but rather an agreement specifying a product or service to 
be procured, the contract clauses that will apply to future con- 
tracts, and other terms and conditions as negotiated between the 
government and the contractor. The agreement contemplates that 
orders can be issued during the term of the agreement and that 
each such order will become a separate contract upon acceptance by 
the contractor. The basic ordering agreement is also required to 
specify a method for pricing future orders. 

The basic ordering agreement theoretically eliminates some of 
the formal steps required in competitively procuring services of a 
convenor/facilitator for each negotiated rulemaking. By entering 
into such an agreement with a mediation/facilitation firm, EPA was 
able to issue orders for services as each new regulatory negotia- 
tion arose. However, use of basic ordering agreements became less 
attractive when recent revisions to the FAR required that, before 
issuing an order under a basic ordering agreement, a federal 
agency must obtain competition in accordance with Part 6 of the 
FAR.-^^ This means that each order under a basic ordering 
agreement is, in effect, a separate competitive procurement 
subject to the same procedures and requirements as would apply to 
a new contract. Thus, some of the gains in efficiency previously 
achieved by using basic ordering agreements have been diminished. 

b. Blanket Purchasing Agreements 

Blanket purchasing agreements, which are not contracts, are 
the equivalent of government charge accounts with qualified 
sources of supply.-*-^ These are used for simplifying purchasing 
when a wide variety of items in a broad class of goods is 
generally purchased, but the exact items, quantities and delivery 
requirements are not known in advance and can be expected to vary 
widely, or where an agreement may avoid the necessity of writing a 
large number of purchase orders. -S-^ Blanket purchasing agreements 



■a^ 48 C.F.R. S 16.703(d)(1) 
i-i-^ 48 C.F.R. S 13.201(a). 
ii/ 48 C.F.R. S 13.203-1. 



SERVICES OF NEUTRALS 309 



ADR "NEUTRALS" 893 

are small purchase procedures and cannot cumulatively exceed the 
dollar limitations for small purchases ($25,000). Use of a 
blanket purchase agreement does not justify sole source 
purchases. -4-^^ 

Such agreements do not appear to be especially useful as 
procedures for contracting with ADR neutrals. The dollar limi- 
tations are too low for regulatory negotiation (but could pay for 
individual arbitrators or minitrial neutrals), the services would 
not be the sort of standard, frequently purchased item contem- 
plated by the regulations, and such an agreement is not a contract 
and could not be used to bind anyone to performance. Nor does the 
existence of a blanket purchase order remove the requirements for 
obtaining compet ition.-S-^^ 

c. Supply Schedules 

The federal supply schedule program-6-&^ provides agencies with 
a simplified process for acquiring commonly used supplies and 
services. Under a supply schedule, contractors agree to fill 
relatively small individual orders from agencies at price dis- 
counts normally available only with commercial volume purchases, 
in return for a promise by the government that certain agencies 
will obtain all of their requirements for the contract items by 
purchasing from the schedule. While one of the main purposes of 
the supply schedule program is to obtain this price advantage for 
the government, a second purpose is to provide a mechanism by 
which agencies can obtain goods and services for which there is a 
recurrent need without struggling' through the rigors of the normal 
procurement process. The supply schedule mechanism, or the 
variant thereof, presents obvious possibilities for the acquisi- 
tion of the services of mediators, facilitators, arbitrators, and 
perhaps other ADR professionals. 

A supply schedule is maintained by an administering agency. 
Most existing schedules are managed by the General Services 
Administration, but other agencies can be authorized to administer 



i^ 48 C.F.R. S 13.204. 

-8^ See 48 C.F.R. S 16.703(d). 

■8-^ FAR Subpart 38.1 specifies the salient legal characteristics 
of the contract device, and FAR Subpart 8.4 contains instruc- 
tions for use by federal agencies in making purchases from a 
supply schedule. 48 C.F.R. Parts 8.4, 38.1. 



310 RESOURCES AND LOGISTICS 



894 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

schedules. -1-^ A supply schedule is often a multiple award-^-i^' 
contract in which all offerors who meet the criteria for inclusion 
are placed on the schedule. Full competition is used to select 
qualified suppliers through an ordinary contracting process that 
may be by sealed bids or by proposals and negoti at ion, -*-!-' as 
appropriate. 

One or more "mandatory" agencies are designated by the 
schedule administrator as being required to purchase all of their 
requirements for the included goods or services from schedule 
suppliers. -2-i>' The designated agencies need not engage in 
competitive cons iderat ions, -^-i^ but may obtain their needs by 
direct order from any schedule supplier. Exceptions to the 
mandatory purchase requirements are available, but do not provide 
much latitude to purchase non-schedule items. Urgent needs that 
cannot be filled by allowing a schedule contractor to accelerate 
the agreed-upon delivery terms can be obtained of f-schedule.-^-*^ 
If a mandatory agency finds a schedule item available from a non- 
schedule supplier at a lower price, then the agency can purchase 
off-schedule -- but only after obtaining full competition. -*-*>' 

Non-mandatory agencies, while not required to purchase from 
the schedule, have the option to do so at the specified schedule 
prices.-*-^ A schedule contractor is not required to fill orders 
from the non-mandatory agencies, but he is encouraged to do so.-^-i^ 



■fi-i^ 48 C.F.R. S 38.101(e). The GSA must authorize another agency 
to award a schedule contract. 

3-^ A single award schedule is also possible (48 C.F.R. 

S 38.102-1), and, in fact, is the preferred mechanism 
(48 C.F.R. S 8.403-1). 

-2-A^ Multiple award schedules are always negotiated. 48 C.F.R. 
S 38.102-2(a). 

3^ 48 C.F.R. S 38.101(b). 

■i-i^ In fact, competitive procedures, such as soliciting bids from 
schedule suppliers, is prohibited. 48 C.F.R. S 8.404(b). 

-"> 48 C.F.R. S 8.404-l(a). 

J-S^ 48 C.F.R. S 8.404-l(e). 

3-iJ 48 C.F.R. S 38.101(c). 

J-2^ 48 C.F.R. S 8.404-2(b). 



\ 



SERVICES OF NEUTRALS 311 



ADR "NEUTRALS" 895 

If the contractor accepts an order from an optional agency, he 
must comply with the pricing and delivery terms of the sched- 
ule. -S-i^ 

Where more than one supplier qualifies under a multiple 
award, then no supplier is entitled to make any sales under the 
schedule, although the mandatory agencies are still bound to 
obtain their requirements from schedule suppliers. This entitles 
a schedule supplier to some relief in the event a mandatory agency 
illegally purchases "off-schedule" (which may include acquiring 
the schedule items from another government agency-2-i>' ) . 

In the context of ADR services, one salient feature of ordi- 
nary supply schedules may require modification. Under current 
rules, a qualifying offeror must agree to deliver services on the 
same terms (in particular, volume pricing discount schedules) as 
the offeror makes available to its best commercial customers. 
This appears to have little meaning in the ADR services situation, 
although a requirement that offerors quote rates equivalent to 
their commercial rates, if any, may be appropriate. This par- 
ticular feature reportedly has caused many desirable firms to 
avoid supply schedule contracts, because of the possibility that 
they would be required to sell at high-volume prices, whereas they 
might have the opportunity to fill only low-volume orders. -i-S^-i!^ 

d. Hiring Neutrals as Consultants, Experts, 
or "Special" Government Employees 

Several statutes authorize federal agencies to obtain the 
services of consultants or experts, either by hiring them as 
federal employees on a short-term or interim basis, or by con- 
tracting for their services.-i-2-i^ The most important 



-iJ^ Id. 

•2-^ For example, the Department of Defense was held to have 

breached a requirements contract by ordering items covered by 
the contract from GSA. Inland Container v. United States, 
206 Ct. CI. 478, 512 F.2d 1073 (1975). 

•i-S-2^ See W. Goodrich & C. Mann, Avoid Disaster, in Federal Supply 
Schedule Contrac ts, 15 Pub. Cont. L.J. 1 (1984) for a review 
of pitfalls facing supply schedule contractors. 

-*-2-i^ Examples: 5 U.S.C. S 575 (Administrative Conference); 7 

U.S.C. S 1642 (Department of Agriculture, rate not to exceed 
$50 per day); 21 U.S.C. S 1116 (Food and Drug Administration, 
six persons may be so employed with no time limitations); 22 
U.S.C. S 290(F) (Inter-American Foundation); 29 U.S.C. S 656 
(Department of Labor, contracts may be renewed annually); 33 
U.S.C. S 569A (Corps of Engineers); 40 U.S.C. S 758 (General 
Services Administration); 49 U.S.C. S 1657(B) (Department of 
Transportation, pay not to exceed $100 per day). 



312 RESOURCES AND LOGISTICS 



896 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

of these laws is 5 U.S.C. S 3109, which provides, in pertinent 
part: 

When authorized by an appropriation or other 
statute, the head of an agency may procure by 
contract the temporary (not in excess of one 
year) or intermittent services of experts or 
consultants or an organization thereof, 
including stenographic reporting services. 
Services procured under this section are with- 
out regard to: 

(1) the provisions of this title governing 
appointment in the competitive service; 

(2) chapter 51 [civil service classifications] 
and subchapter iii of chapter 53 [pay] of this title; 
and 

(3) section 5 of title 41 [requirements for 
advertising of contracts] .... 

Section 3109 confers on those agencies that have the appro- 
priate authorization in an organic or appropriation statute^-^^-^^ 
the ability to employ consultants or experts without regard to 
civil service competitive hiring restrictions. In the context of 
ADR neutrals, experts are of most interest here as a consultant 
serves primarily "as an advisor to an officer" but "neither per- 
forms nor supervises performance of operating functions. "-*-2-i^ 

Agencies can retain experts and consultants on a full-time 
basis for only one year, although many of the authorizing statutes 
allow for annual renewals. Experts and consultants can be hired 
on an intermittent basis -- that is, from time to time, working up 
to 130 days in a year -- for an indefinite per iod.-i-i^-*^ The pay is 
set by the employing agency, and may be up to the rate of pay for 
level V of the Executive Service. ' '' '^ ' No retirement benefits are 
accorded, and, unless required by other statutes, no holidays or 
overtime are provided for. Employees in this category are "per 
diem" employees, even if their tour of duty is for one year. 



-L-S-^ The Department of Defense Authorization, for example, have 
been contained in the yearly DOD appropriations acts. 

-i-!LJ^ 23 Comp. Gen. 497 (1944); Federal Personnel Manual ("FPM") 
304-1-2(1). 

-Li^ FPM 304-1-2(5), (6). 

-L-2-i^ 5 U.S.C. S 3109. Other limitations may apply under statutes 
that provide specific authorization. See note 101, supra . 



SERVICES OF NEUTRALS 313 



ADR "NEUTRALS" 897 

The employment of experts and consultants could be used by an 
agency with an irregular need for ADR services. Professionals 
could be brought on board in a short time, without the need for 
either a full-blown procurement or a competitive civil service 
placement. If a requirement for many services can be foreseen, 
but their timing is liable to be sporadic, then the employees 
could be hired on an intermittent basis, providing services from 
time to time as necessary. ^-2-^ 

There are several potential impediments to hiring ADR neu- 
trals as special government employees. These impediments may be 
summarized as follows: 

Conflicts of Interest . Employees hired under 5 U.S.C. S 3109 
are subject to all statutory prohibitions on conflicts of inter- 
est, including ethical standards, financial disclosure, and post- 
employment restrictions on employment .J-J^-^^ To the extent that an 
expert or consultant becomes sub3ect to conflict-of-interest 
restrictions, his professional options after serving as a neutral 
could be constrained. For example, a consultant employed by EPA 
on an intermittent basis was excluded from bidding on an EPA 
contract relating to her area of expertise because, at the time of 
the contract bidding, she was still technically an employee of 
EPA. This result was reached even though the consultant had not 
actually accepted any work for the agency for a period of time 
prior to bidding .-i-2-4>' in a recent case, the government was 
enjoined from proceeding with a contract awarded to a bidder who 
had been an employee of the government when he bid, but who 
resigned prior to the award. -^S-i^ 



iJi-iy It is possible for a professional to maintain two or more 
intermittent positions with different agencies. See 5 
U.S.C. S 5703. The Federal Personnel Manual states that, 
under an exception to the general restriction against being 
paid for more than one position for more than 40 hours per 
week, "an individual is entitled to pay for services on an 
intermittent basis from more than one consultant or expert 
position, provided the pay is not received for the same hours 
of the same day." FPM 304-6-1. 

-'-S-!^ FPM 304-1-9. Temporary or interim employees who serve 

less than 130 days per year may qualify for treatment as 
a "special government employee", and thereby will not be 
subject to all of the prohibitions that apply to regular 
employees. See FPM Chapter 735. 

A-^Liy Matter of Enarco, Inc., B-218106, 85-1 CPD \ 592 (May 23, 
1985). 

J-fl-*^ Speakman Co. v. Weinberger, (unpublished, D.D.C.), CCH 

Government Contracts Reports 1 74,539 (October 2, 1986). 



314 RESOURCES AND LOGISTICS 



898 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

Pay Limitations . Compensation for experts and consultants 
who are hired under Section 3109 is limited to the rate of pay for 
level V of the Executive Service. The daily rate may therefore be 
considerably less than a highly qualified neutral could command in 
the commercial market. Moreover, specific authorizing statutes 
for some agencies limit the compensation for temporary experts and 
consultants to very low levels; for example, the rate of compen- 
sation for Department of Agriculture experts is limited to $50 per 
(jay.-i-i-!iy Thus, some qualified potential ADR neutrals may be 
unwilling to offer their services to government agencies if their 
compensation is limited to an arbitrarily low level. 

Requirement to Follow Procurement Procedures . As noted 
above, hiring a neutral through Section 3109 obviates competitive 
civil service requirements. Section 3109 also exempts such 
hirings from the requirements of 41 U.S.C. S 5, which requires 
that all procurements of contracts for supplies or services in 
excess of $10,000 be publically advertised. However, the 
Comptroller General has held that this exemption 

does not relieve an agency from the necessity 
of satisfying all of the other applicable 
requirements imposed by the Federal Property 
and Administrative Services Act of 1949 . . . 
and the Federal Procurement Regulations . . . 
on Government contracts for goods or nonper- 
sonal services. ' ' ' / 

Thus, it is not at all clear that hiring ADR neutrals as special 
government employees is any more efficient than utilizing procure- 
ment techniques discussed above. 

e. Innovations in Procedures 

Contracting for services for multiple proceedings (especially 
in the case of indefinite quantity contracts) can encounter pro- 
cedural requirements in the Federal Acquisition Regulation that 
simply do not conform to the needs of the agencies. Subpart 1.4 



-Li-a^ 7 U.S.C. S 1642. 

-i-LL/ 61 Comp. Gen. 69, 78 (1981) (citations omitted) 



SERVICES OF NEUTRALS 315 



ADR "NEUTRALS" 899 

of FAR contains the kernel that may provide the solution to this 
situationrJ-i-^ 

Unless precluded by law, executive order, 
or regulation, deviations from the FAR may be 
granted as specified in this subpart when 
necessary to meet the specified needs and 
requirements of each agency. The development 
and testing of new techiques and methods of 
acquisition should not be stifled simply 
because such action would require a FAR devi- 
ation. The fact that deviation authority is 
required should not, of itself, deter agencies 
in their development and testing of new tech- 
niques and acquisition methods . . . .-l»-1^ 

While statutory requirements cannot be waived, the FAR itself 
points the way toward its own adjustment. Many specifications for 
contract devices, such as supply schedules and indefinite quantity 
contracts, were not established by statute, but rather developed 



J-io/ 48 C.F.R. S 1.402. 



■i-i-i^ Revisions to the Federal Acquisition Regulations are prepared 
and issued through the coordinated action of the Civilian 
Agency Acquisition Council (composed of representatives of 
the civilian executive departments and EPA, the Small Busi- 
ness Administration, and the Veterans Administration) and the 
Defense Acquisition Regulatory Council (representatives of 
military departments, the Defense Logistics Agency, and 
NASA). 48 C.F.R. S 1.201-1. Notice and comment rulemaking 
is used when the revision is "significant". 48 C.F.R. 
S 1.501.2. 

Deviations from the FAR are permitted "when necessary to 
meet the specific needs and requirements" of an agency, and 
require authorization by specified agency officials. 48 
C.F.R. S 1.402. Deviations for a single contracting action 
require the agency head or a delegee to authorize the devia- 
tion and to furnish the FAR Secretariat with a copy of the 
authorization. 48 C.F.R. S 1.403. Deviations for a class of 
civilian contracting actions require that the appropriate 
agency official first consult with the Civilian Agency Acqui- 
sition Council. 48 C.F.R. S 1.404(a)(1). When an agency 
perceives the need for a class deviation on a permanent 
basis, the agency must submit a proposed FAR revision to the 
FAR Secretariat for consideration by the pertinent FAR Coun- 
cil(s). 48 C.F.R. S 1.404(a)(2). Deviations for defense 
agencies and NASA are subject to slightly different require- 
ments. 



316 RESOURCES AND LOGISTICS 



900 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

over the years largely through experience and adjudication; it is 
these structural devices that are susceptible of modification. 

5 . Use of Government Neutrals 

Using employees of the federal government as neutrals has 
several advantages. First, assuming the immediate availability of 
a qualified government neutral, the delays inherent in the pro- 
curement process described above may be avoided. Second, using 
government employees presumably spares the government the addi- 
tional expense of paying outside neutrals.-^-^-^*^ Third, to the 
extent that the use of private parties as "neutrals" creates 
constitutional issues under the "delegation doctrine" ( See S IV 
infra ) , those issues are presumably avoided, or at least 
substantially reduced, when government employees perform the 
neutral function. Finally, there may be a long-term advantage to 
the extent that as government employees become expert in acting as 
neutral advisors, arbitrators, or convenors/facilitators, the 
process of institutionalizing ADR and regulatory negotiation 
within the government will be enhanced. 

Potential limitations on the use of government employees as 
neutrals are: f irst , private parties to disputes may not view 
government employees as truly neutral; and second , the most 
logical providers of neutral services, such as FMCS and CRS, may 
be inhibited by their statutory charter-!-*-^ and/or manpower 
limitations from providing such services on a regular basis. 

E. Long-Term Structural Issues 

As discussed above, use of state-of-the-art ADR techniques 
and regulatory negotiation by federal agencies is still in an 



However, an agency may be required to compensate the FMCS, 
for example, for the services of one of its mediators through 
an inter-agency transfer of funds. See 31 U.S.C. S 1535. 
Some have argued that if one considers the fully allocated 
cost of a government employee's time, including salary and 
overhead, use of a government neutral may be more costly than 
contracting with an outsider. 

FMCS is authorized to conciliate labor disputes (29 U.S.C. 
S 173), while the CRS is charged with mediating conununity 
disputes relating to discrimination on the basis of race, 
color, or national origin. As in the past, FMCS or CRS 
could in effect loan an employee to another agency for a 
limited period to assist in an ADR or reg neg proceeding. 
See discussion in Section III.C.4 above. But the agencies' 
statutory charters would probably prevent them from estab- 
lishing an ongoing ADR neutrals services for other federal 
agencies without specific congressional authorization. 



SERVICES OF NEUTRALS 317 



ADR "NEUTRALS" 901 

experimental or formative stage. The experience of agencies is 
limited, and many agencies are sensitive to potential political 
criticism of their use of newly developed negotiation techniques. 

The dilemma created by these factors is that the growth of 
these ADR techniques and regulatory negotiation may be limited by 
the shortage of experienced neutrals in the private sector; if 
agencies do not expand their use of such techniques, however, the 
pool of experienced neutrals cannot expand. 

Thus, agencies must respond to the long-term need to develop 
a broader base of expertise upon which to draw for neutral ser- 
vices. Expansion of the talent pool could occur through several 
processes: 

Less stringent criteria for selection . The Corps of Engi- 
neers has conceded that it is more sensitive about the selection 
of neutral advisors for its minitrials during the developmental 
stage, when the process is potentially subject to greater scrutiny 
by higher officials in the agency and/or Congress. As the program 
gains acceptance over time and becomes more part of the Corps' 
routine procedures, its visibility will be reduced. At that 
point, the Corps believes it may loosen its criteria for selection 
to broaden the base of available neutrals. 

Training mechanisms . The proposal submitted by NIDR on the 
EOP/CEQ regulatory negotiation procurement provided that each 
negotiation would be staffed by at least two convening/facilitat- 
ing professionals. One purpose of this staffing was to allow the 
senior professional to train his colleague in the process, thus 
giving the junior professional the experience needed to perform 
convening or facilitating services for future regulatory negoti- 
ations. While such a "team" approach may involve some short-term 
costs, it may be beneficial in the long run in developing a 
broader cadre of trained professionals available to the agencies. 

Government neutrals . Both the FMCS and CRS were created in 
response to a specific need for mediation services within the 
government. By expanding the authority of FMCS, CRS, or other 
agencies, or creating a new "neutrals" service organization within 
the government, agencies' ability to expand their use of ADR and 
regulatory negotiation techniques would be enhanced. -i-i-^ 

Government Roster of Neutrals . Another device for expanding 
the availability of qualified neutrals would be to assign a single 



The National Institute for Dispute Resolution has a program 
for providing moderate grants to educational institutions and 
state governments to establish dispute resolution programs. 
Such "seed money" may be available to federal agencies that 
are interested in establishing pilot programs or policy 
guidelines for the use of ADR or regulatory negotiation. 



318 RESOURCES AND LOGISTICS 



902 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

agency, such as ACUS, to maintain a roster of qualified neutrals 
from which other agencies could draw. Private individuals and 
organizations who wished to be listed on the roster would submit 
applications specifying educational background, experience, and 
techical expertise, if any. The central agency could also collect 
feedback on those neutrals who were actually employeed by agencies 
for ADR or regulatory negotiation. The establishment and main- 
tenance of such a roster could be patterned after the Roster of 
Arbitrators maintained by FMCS for use in voluntary arbitrations 
of disputes arising under labor collective bargaining 
agreements . -'-i-^^ 

IV. 
DELEGATION ISSUES 



A recurring issue with respect to federal government use of 
ADR techniques is whether the functions performed by private 
neutrals are unconstitutional under the "delegation" doctrine.-i-^-i^ 
"Delegation" actually encompasses a number of different consti- 
tutional concepts, including violations of due process, delegation 
of legislative power, and violation of the Appointments 
Clause. -»-L-i^ 



-u-^ 29 C.F.R. Part 1404. 

■i-i^i-/ See Memorandum for Stephen J. Markman, Assistant Attorney 

General, Office of Legal Policy, "Administrative Conference 
Recommendation on Federal Agencies' Use of Alternative 
Dispute Resolution Tecliniques" (May 24, 1986). 

-L-i-S-/ In addition, 0MB Circular A-76, Performance of Commercial 

Activities , August 16, 1983, prohibits award of any contract 
"for the performance of an inherently governmental function.' 
The Circular defines "governmental function" as follows: 

(1) The act of governing; i.e. , the discre- 
tionary exercise of Government authority. Examples 
include criminal investigations, prosecutions and 
other judicial functions; management of Government 
programs requiring value judgments, as in direction 
of the national defense; management and direction 
of the Armed Services; activities performed exclu- 
sively by military personnel who are subject to 
deployment in a combat, combat support or combat 
service support role; conduct of foreign relations; 
selection of program priorities; direction of Fed- 
eral employees; regulation of the use of space, 
oceans, navigable rivers and other natural 
resources; direction of intelligence and counter- 
( Footnote continued) 



SERVICES OF NEUTRALS 319 



ADR "NEUTRALS" 903 

Due Process . In a line of cases dating back to the Depres- 
sion era, the Supreme Court struck down legislative delegations of 
public decisionmaking authority to private entities on the ground 
that such delegations violated due process.J-J-S-^ In each of these 
cases, the principal due process objection was that the power to 
regulate a group of private parties was delegated to a subgroup of 
such parties who had an interest in the result of the regulation. 
For example, in Carter v. Carter Coal Company -^-L^ the Court was 
reviewing the Bituminous Coal Conservation Act of 1935. The Act 
established a national bituminous coal commission and divided the 
country into districts. Within each district, the majority of 
producers and miners were authorized to fix maximum hours of labor 
and minimum wages that were binding upon all producers and miners 
within the district. The Supreme Court held that this was an 
unconstitutional violation of due process, stating as follows: 

The power conferred upon the majority is, 
in effect, the power to regulate the affairs . 
of an unwilling minority. This is legislative 
delegation in its most obnoxious form; for it 
is not even delegation to an official or an 
official body, presumptively disinterested, 
but to private persons whose interests may be 
and often are adverse to the interests of 
others in the same business.-*-^-^ 

Other infirmities in the private delegations found unconsti- 
tutional by the due process line of cases are the lack of any 
specified standards for decision by the private parties, and the 
lack of any review by a government agency or court. 

Delegation of legislative power . The principal case in this 
line of authority is A.L.A. Schecter Poultry Corp. v. United 
States . -i-2-i^ Schecter struck down portions of the National 
Recovery Act as unconstitutional delegations of legislative power. 
In particular, Section 3 of the Act delegated to private parties 
and the President the power to enact codes of fair competition 



■i-i-iy (continued) 

intelligence operations; and regulation of industry 
and commerce, including food and drugs. 

■»-i-tt^ Carter v. Carter Coal Company, 298 U.S. 238 (1938); Seattle 
Title Trust Co. v. Roberge, 226 U.S. 1 (1928); Eubank v. 
City of Richmond, 226 U.S. 137 (1912). 

-»-«-J^ 298 U.S. 238 (1935). 

■»-i^ Id., 298 U.S. at 311. 

-»-l^ 295 U.S. 495, 537 (1935). 



320 RESOURCES AND LOGISTICS 



904 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

that were enforceable by injunction and punishable as crimes. The 
Court held that this "unfettered" delegation of legislative power 
was an unconstitutional violation of the separation of powers 
doctrine. 

Appointments Clause . In this line of cases, the Court has 
nullified delegations of decisionmaking authority to private 
parties on the basis that official government functions cannot be 
performed by persons who were not appointed by the President with 
the advice and consent of the Senate pursuant to Article II, sec- 
tion 2, clause 2 of the Constitution. In Buckley v. Valeo ^-^-^ the 
Court held certain provisions of the Federal Election Campaign Act 
of 1971 to be unconstitutional on the basis that the majority of 
the voting members of the Federal Election Commission were 
appointed by the President pro tempore of the Senate and the 
Speaker of the House. The Commission had authority to make rules 
for carrying out the Act, to enforce the Act by bringing civil 
actions against violators, and to temporarily disqualify federal 
candidates for failing to file required reports. The Court held 
that the delegation of such regulatory and enforcement functions 
to persons not appointed by the President with the advice and 
consent of the Senate violated the Appointments Clause. 

Under these various lines of delegation cases, -*-^-^ consti- 
tutional issues should not arise with respect to the various forms 
of ADR that are totally nonbinding, such as minitrials and 
mediation. In a minitrial, for example, the neutral advisor at 
most presides at the hearing and acts as a mediator between the 
principal negotiators. In no event does he render any kind of 
decision that is binding on either the private party or the 
government. The lack of any binding decisionmaking authority thus 
insolates nonbinding ADR from constitutional criticism. 

Similarly, there should be no constitutional issues with 
respect to regulatory negotiation, as structured under the ACUS 
recommendations. First, the convenor/facilitator is not a deci- 
sionmaker, but rather a person who identifies the issues and the 
interested parties, and attempts to mediate a negotiated reso- 
lution among the parties. Second, under the ACUS recommendations, 
the product of the regulatory negotiation is a proposed rule that 
is not in any way binding upon the agency. ^-^-^ At the completion 
of the regulatory negotiation, the proposed regulation must be 



J^-i^ 424 U.S. 1 (1976). 

■i-i^ See generally Liebmann, Delegation to Private Parties in 
American Constitutional Law , 50 Ind. L.J. 650 (1975). 

■i-^-^ See R. H. Johnson & Co. v. SEC, 198 F.2d 690 (2d Cir.), 

cert, denied , 344 U.S. 855 (1952); United Black Fund, Inc. 
V. Hampton, 352 F.Supp. 898 (D.D.C. 1972). 



SERVICES OF NEUTRALS 321 



ADR "NEUTRALS" 905 

published in the Federal Register and subjected to the notice-and- 
comment rulemaking procedures of the Administrative Procedure 
Act.J^-^ 

The constitutional delegation issues arise principally with 
respect to neutrals who have authority to issue decisions that are 
binding upon the parties to a dispute. This is most likely to be 
an issue in the case of arbitration. Again, however, if agencies 
follow the details of the ACUS recommendation regarding ADR, con- 
stitutional issues should be avoided.-i-^-S^ Under the ACUS 
recommendation, resort to arbitration is a voluntary decision of 
the parties, unless mandated by a statute. Thus all parties 
consent to the arbitration proceeding. In addition, the parties 
have a role in the selection of the arbitrators, thus insuring 
that they will be neutral and disinterested. The decision of the 
arbitrator is subject to judicial review under the standards of 
the U.S. Arbitration Act.-*-^-^ Finally, the ACUS recommendation 
provides that arbitration is appropriate only when the norms for 
decision have been established by statute, precedent, or rule.-*--*-^ 

Thus, the potential due process objections to delegations of 
decisionmaking authority to private parties should not apply to 
voluntary arbitration, as structured by the ACUS recommendation. 
The fact that the interested parties consent to the procedure as a 
practical matter eliminates the potential for due process chal- 
lenge. Moreover, the traditional due process objections (self- 
interest of the decisionmaker, lack of decisional norms, and lack 
of judicial review) are specifically addressed and resolved by the 
ACUS recommendation. 

Finally, any doubts regarding whether binding arbitration 
complies with the due process clause are probably eliminated by 
the Supreme Court's decision in Schweiker v. M cClure .-J-^-^ That 
case involved review of provisions of the Socral Security Act 
establishing the Medicare program. The Act provided that any 
disputes regarding Medicare claims would be subject to mandatory 
arbitration by employees of private insurance carriers who had 
been retained to administer the program. Implementing regulations 
promulgated by the Department of Health and Human Services 
required that these private "hearing officers" be attorneys or 
other qualified individuals who (1) had the ability to conduct 
formal hearings; (2) generally understood of medical matters and 



■i^^-^ ACUS Recommendation 82-4, 1 C.F.R. S 305.82-4, IIH 13-14. 

^^^-^ ACUS Recommendation 86-3, 1 C.F.R. S 305.86-3, K 4. 

■^^-^ 9 U.S.C. S 10. 

-»-»-«^ ACUS Recommendation 86-3, 1 C.F.R. S 305.86-3, II 5(a)(2). 

-LJ-L/ 456 U.S. 188 (1982). 



322 RESOURCES AND LOGISTICS 



906 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

terminology; and (3) possessed a thorough knowledge of the 
Medicare program, including the statute and regulations on which 
it is based. -i-i-^ 

The Supreme Court held that this scheme complies with due 
process. The Court stated that there was a presumption that the 
hearing officers who decided Medicare claims were unbiased. Since 
claims were ultimately paid by the federal government, and not 
their private employers, the hearing officers had no personal or 
financial interest in the outcome of the proceedings. In 
addition, the requirement that hearing officers have pertinent 
experience and familiarity with the Medicare program minimized the 
risk of an erroneous decision and the probable value of additional 
procedural safeguards.-^-^-J^ Under Schweiker , therefore, mandatory 
arbitration schemes are constitutional under the Due Process 
Clause, so long as the arbitrator are disinterested and possess 
adequate qualifications. -'-J-*^ 

Nor should binding arbitration, as defined in the ACUS 
recommendation, involve unconstitutional delegation of legislative 
power or violation of the Appointments Clause. Recommendation 
86-3 makes it clear that binding arbitration is inappropriate 
where the norms for decision are not established by statute, 
regulation, or precedent .J-i-^ Thus, arbitrators will in no event 
be making policy decisions, but rather will be applying existing 
decisional standards to the facts of a particular dispute. 
Certainly, an arbitrator's award cannot be fairly analogized to 
the codes of fair competition that were struck down in the 
Schecter Poultry case; in that case, the codes established norms 
for behavior by private parties that were enforceable through 
injunctions or criminal actions. An arbitrator's award simply 
resolves a fact-specific dispute between a private party and the 
government, or among private parties. 



-i-J-i^ Id., 456 U.S. at 199. 

-1-1-1^ Id., 456 U.S. at 198-99. See also Thomas v. Union Carbide 

Agricultural Products Co., U.S. , 105 S. Ct. 3325 

(1985) (Upholding binding arbitration provisions of the 
FIFRA) . 

-i-i-i^ A specific statutory mandate does not appear necessary for 

the delegation of decisionmaking authority by an agency. See ' 
Tabor v. Joint Board for the Enrollment of Actuaries, 
566 F.2d 705, 708 (D.C. Cir. 1977). 

J-J-i^ ACUS Recommendation 86-3, 1 C.F.R. S 305.86-3, 1 5(a)(2). 



SERVICES OF NEUTRALS 323 



ADR "NEUTRALS" 907 

Finally, arbitrators do not have the authority to promulgate 
or enforce regulations, as did the Federal Electoral Conunission in 
Buckley v. Valeo .-^-*^ Thus, the Appointments Clause should not 
stand in the way of agencies* employing arbitration under the ACUS 
recommendat ion . 



V. 

CONCLUSIONS 



The challenges facing federal agencies in expanding the use 
of ADR and regulatory negotiations include developing and refining 
procurement procedures that will streamline the process of hiring 
outside neutrals, and developing a broader base from which to draw 
in acquiring the services of private or government neutrals. 
Meeting this challenge will require that agencies be flexible in 
defining the qualifications required of outside neutrals, avoiding 
rigid requirements of technical expertise or specific ADR expe- 
rience unless such qualities are essential to the success of the 
proceedings. Agencies would also benefit from efforts to pool 
information about their experience with ADR neutrals, ideally with 
the advice and assistance of agencies like ACUS and FMCS. Advan- 
tage should be taken of opportunities to train government 
personnel in ADR skills, and to utilize the expertise of existing 
dispute resolution services within the government. Finally, 
agencies should use existing procurement techniques in imaginative 
ways, and seek to develop new techniques, so that the services of 
qualified ADR neutrals can be acquired without the delays and 
procedural hurdles inherent in the normal competitive procurement 
process. 



-Li-^ In the specific context of government contracts disputes, an 
issue has been raised as to whether binding arbitration would 
violate the requirements of the Contract Disputes Act of 
1978, 41 U.S.C. S 601 et seg. (1982). That Act expressly 
authorizes agency boards of contract appeals or the U.S. 
Claims Court to hear and decide appeals arising out of dis- 
putes between government contractors and federal agencies. 
Arguably, the Contracts Disputes Act would pose a barrier to 
the use of arbitration in government contracts disputes 
unless the Act were specifically amended to permit 
arbitration. 



324 RESOURCES AND LOGISTICS 



COMMERCE BUSINESS DAILY Monday. January 26. 1 987 



Environmental Protection Agency, Procurement Operations 
Branch. (PM-214F). 401 M St.. SW. Washington. DC 20460, 
Attn: Michael Travis, Contracting Officer, 202/382-3211 

H-SUPPORT SERVICES FOR REGULATORY NEGOTIATION AND OTHER 
CONSULTATIVE PROCESSES The EPA has a requirement for contractor 
support in convening, facilitating, documenting, and training, as well as related 
resource, analytic, and direct support for the regulatory negotiation process. A 
fixed— rate, indemnity qty contr is planned with a 12 month base period and two 
12-month option periods. Copies of the RFP will be avail to prospective 
offerors o/a 2 Feb 87. Requests must be submitted in writing. Tel requests 
will not be honored. RFP WA87-A058. See Note 57. (021) 



COMMERCE BUSINESS DAILY Thursday. September 1 8. 1 986 



US Dept of the Interior, Office of Surface Mining, Reclamation tc 
Enforcement, Washington, DC 20240 

H-PLANNING, CONVENING, AND FACILITATING RULEMAKING WORK- 
SHOPS AND THE CONDUCT OF INFORMAL AND FORMAL MEETINGS 

with Osmre's diverse affected constituency in the areas of rulemaking outreach, 
facilitated and negotiated rulemaking. The govt may award a contract on the 
basis of initial offers received, without discussions (FAR 52.215-16(c)). Req 
must be in writing. Tel req will not be honored. Subject to the availability of 
FY87 funding. Sol 01-87 (JEP), due thirty days after publication. POC Marie 
Chavis. (258) 



EPA CONTRACT 



325 



68-W4-0001 



Pag* 1 



AWARD/CONTRACT 



1. CERTIFIED FOR NATIONAL DEFENSE UNDER BDSA REG 2 AND/OR DMS REG. 1 

1 RATING 



2. CONTRACT NO 
6e-U4-0001 



3. EFFECTIVE DATE 
3/22/94 



4 REQUISITION/PROJECT NO 
W201430-A2 



ISSUED BV Coda: 

Environmental Prottction Agtncu 
Procurciiicnt Oparationi Br. (3803F) 
401 n St. SW 
Washington. DC 20460 



6. ADMINISTERED BY Cod* 
(If oth«r th«n Ittm 9) 



7. NAME AND ADDRESS OF CONTRACTOR 

RESOLVE. INC 

1250 24TH STREET, NW 

SUITE #500 

12S0 24th St. , N. U. 

UASHINCTON, DC 20037 
Coda: F«cilltg: 

10. SUBMIT INVOICES (4 copiti unl««k otherwist «p«cifiad> TO THE ADDRESS 
SHOUN IN ITEM: 12 



DELIVERY. 

C ] FOB ORIGIN 

CX] OTHER (Stt bfllow) 

DISCOUNT FOR PROMPT PAYMENT 
N/A 



11 SHIP TO/MARK FOR Cod* 



If appl icablti 
«•• Section D 
of the Schtdul* 



PAYMENT WILL BE MADE BY 
Cod*: 
Environmental Protection Agency 
Research Triangle Park Financial 
Management Center (Mail Code MD-32i 
Research Triangle Park. NC 27711 



13 AUTHORITY FOR USING OTHER THAN FULL AND OPEN COMPETITION 

C 3 10 use 2304(c>( ) C ] 41 U. S. C. 293 (c) ( ) 

14 ACCOUNTING AND APPROPRIATION DATA 

See accounting and appropriation data in Section B. 



15A ITEM 15B SUPPLIES/ 
NO. SERVICES 



15C QUANTITY 15D. UNIT 15E UNIT ISF AMOUNT 
PRICE 



DISPUTE RESOLUTION SUPPORT SERVICES FOR REGULATORY 
NEGOTIATION AND OTHER CONSULTATIVE ACTIVITIES 



TOTAL CONTRACT AMOUNT: M. 417, 746. 20 



APPROVED BY OIRM 3/84, FAR (48 CFR 53 214(c)) EXCEPTION TO STANDARD FORM 26 



326 RESOURCES AND LOGISTICS 



Pagt 2 



68-W4-0001 



AWARD/CONTRACT 



16. TABLE OF CONTENTS 
PART/SECTION DESCRIPTION 
PART I - THE SCHEDULE 

A SOLICITATION/CONTRACT FORM 

B SUPPLIES OR SERVICES AND PRICES/COSTS 

C OESCRIPTION/SPECIFICATIONS/WORK STATEMENT 

D PACKAGING AND MARKING 

E INSPECTION AND ACCEPTANCE 

F DELIVERIES OR PERFORMANCE 

C CONTRACT ADMINISTRATION DATA 

H SPECIAL CONTRACT REQUIREMENTS 
PART II - CONTRACT CLAUSES 

I CONTRACT CLAUSES 
PART III - LIST OF DOCUMENTS. EXHIBITS AND OTHER ATTACHMENTS 

J LIST OF ATTACHMENTS 
PART IV - REPRESENTATIONS AND INSTRUCTIONS 

K REPRESENTATIONS. CERTIFICATIONS AND OTHER STATEMENTS OF OFFERORS 

CONTRACTING OFFICER WILL COMPLETE ITEM 17 OR IB AS APPLICABLE 

TT. CXI CONTRACTOR'S NEGOTIATED AGREEMENT (Contractor i« riquirvd to lign thit 
documont «nd rtt'urn 4 copi«* to Itkuing offic*. ) Contractor agrto* to furnifh 
and dalivor all itaint or parfern all tha aarvica* sat forth or otharwita 
idantifiad abova and on any continuation shaatt for tha conaidaratlon stated 
harain. Tha rights and obligations of tha partias to this contract shall ba 
subjact to and govarnad bg tha following documants. (a) this award/contract. <b> 
tha solicitation, if ang. and (c> such provisions, raprasantations. 
cartif icati'ons. and spac if ications as ara attachad or incorporatad bg '-«fa'-cnc« 
harain. (Attachmants ara listad harain. > 

16 CI AWARD (Contractor is not raquirad to sign this documant. > Your offer on 

Solicitation Numbar . including tha additions or changes nada bg gou 

which additions or changes ara sat forth in full above, is hereby accepted as to 
the Itaas listad abova and on ang continuation sheets. This award consummates 
the contract which consists of tha following documents: (a) tha Government's 
solicitation and gour offer, and (b) this award/contract. No further contractual 
document is necessary. 

19A. NAME AND TITLE OF SIGNER 20A. NAME OF CONTRACTING >jFFI«eR 
(Tgpe or print) 

CA,U g.O^H^ ?>^.l>6/0r- CAYLIAL. PREJEAN ^ 

19B. NAME OF CONTRACTOR /2e5o<-N/E rl^o. 208. UNITE^ STATES OF AMERICA 

bq ( ^.^:^^7cif (^,.-A^ bg -<^-;i^fi ^-*-^<^* '^^-^^^ 

(Signatul^a of aorson^uthorixad to sign) (Signature 6)t Contracting/officer) 



'darsonNpt 
19C. DATE SIGNED 20C DATE SIGNED 

APPROVED BY OIRM 3/84, FAR (48 CFR 93.214(c)) EXCEPTION TO STANDARD FORM 26 



EPA CONTRACT 327 



Page 22 
68-W4-0001 Section C 

C 2 STATEMENT OF WORK—CONTRACT WHERE WORK IS 

ORDERED BY WORK ASSIGNMENTS OR DELIVERY ORDERS 
(EP52 210-110) (APR 19S4) 

The Contractor shall furnifh the necessary personnel, material, 
equipment, services and facilities (except as otherwise specified), 
to perforip the Statement of Work/Specifications specified below. 
The contractor shall not occupy or work for extended periods of time 
in EPA space. THE CONTRACTOR SHALL NOT INTERPRET EPA POLICY ON 
BEHALF OF EPA NOR MAKE DECISIONS ON ITEMS OF POLICY. REGULATION OR 
STATUTE. THE CONTRACTOR SHALL NOT TAKE A STAND ON THE MERITS OF 
SUBSTANTIVE ITEMS UNDER DISCUSSION. 

The Contractor shall perform work under this contract on4y as 
directed in delivery orders issued by the authorized'order ing 
officers. 

C.2. 1 BACKGROUND AND OBJECTIVES: 

1. BACKGROUND 

a. CONSENSUS AND DISPUTE RESOLUTION PROGRAM 

The Consensus and Dispute Resolution (CDR) Program (formerly 
the Regulatory Negotiation Project) of the Office of Policy. 
Planning and Evaluation provides management of contractor support 
for Alternative Dispute Resolution (ADR) and collaborative problem 
solving activities conducted by both Headquarters and Regional 
offices of the Environmental Protection Agency. In addition to 
management of contract supports the Program assists all EPA program 
and regional offices in the initial selection and design of dispute 
resolution, collaborative problem solving and consensus building 
processes in all types of disputes involving the Agency except 
enforcement disputes. The CDR Program provides ongoing staff 
support for national regulatory negotiations and policy dialogues-. 

The CDR Program provides management of contract resources for 
the use of AOR proceedings in enforcements compliance and permitting 
cases for th* Office of Enforcement and all of EPA's Regional 
Offices. 

The AOR Coordinator for purposes of the Administrative Dispute 
Resolution Act is the Assistant Administrator for Enforcement. Staf« 
of the Assistant Administrator provide overall policy coordination 
for EPA dispute resolution activities and serve as the primary 
liaison for all ADR activities within the Office of Enforcement. 
Regional office case attorneys provide case specific supervision of 
ADR activities on. their own cases. At the present time EPA does not 
have ADR coordinators in each regional office. 

Over the past four years during the performance of prior 
contracts* approximately one third of the contractual effort was 



328 RESOURCES AND LOGISTICS 



Pag* 23 
68-W4-0001 Section C 

directed touiard long term reguletorg negotiations and policy 
dialogues' one third to short term collaborative problem solving 
workshops and meetings' and one third to case specific dispute 
resolution and ADR training seminars 

The Environmental Protection Agency's Consensus and Dispute 
Resolution Program and the Office of Enforcement's ADR program are 
further described in the Attachments A S< H. 

b- LONG TERM REGULATORY NEGOTIATION AND DIALOGUES 

In early 1983) th« Enviranman4;al Protection Agencg began the 
Regulatorg Negotiation Project to studg the usefulness of all- 
party< face-to-face negotiations as a supplement to the informal 
notice and comment process of regulatory development. 

The concept of regulatory negotiation was developed, in part, 
from other existing models for negotiation. Many building codes, 
electrical and plumbing standards, and product safety measures are 
developed through a process of negotiation among affected parties. 
Negotiations take place in settling lawsuits which challenge 
regulatiops. In environmental affairs, the use of negotiation and 
mediation to resolve regulatory and enforcement conflicts involving 
government agencies has continued to increase. 

Negotiation, formal or informal, is a process that gives 
parties far greater input into decision-making. Parties with 
different interests can resolve issues by meeting, discussing, and 
agreeing on facts, questions, and solutions Encouraging parties to 
share information and work together provides a more solid base of 
agreed-on facts and fosters more creative approaches to resolving 
issues and reaching consensus. 

Regulations mm typically developed by informal notice and 
comment, as specified in the Administrative Procedure Act. This 
tends to be an adversarial process. An agency develops facts and 
policy, solicits comments from interested parties, and proposes a 
rule. The agency then analyzes the comments and issues a final 
rule. When this systea fails to accommodate competing interests, 
the result ie soine fora of conflict, frequently litigation. As ntanij 
as SOX of. an agency's regulations are challenged in court. The 
amount of tla« and resources involved in this effort are enormous, 
each year these cases require approi imately 90 work-years of EPA 
legal supports 79 work years of Department of Justice support., and 
179 workyears of time for plaintiff's counsel. 

Continuing evaluation of the use of regulatory negotiation 
shows that it offers an innovative opportunity to explore how to (1) 
use Agency time and resources and those of interested parties more 
effectively' (2> involve the public more fully and openly> to 
produce better regulations, and (3> reduce litigation and 
uncertainty. 

The goal for each regulatory negotiation is to reach a 



EPA CONTRACT 329 



Pag* 24 
68-U4-0001 Stction C 

consensu* upon which to base a Notic* of Proposed Rulemaking. This 
consensus is used to the extent feasible under Federal law as the 
basis for the proposal. An independent third partly — the 
f ac 1 1 i tator— cha irs the negotiations, keeps the process moving 
smoothlij. and assists in resolving disputes 

Negotiations occur at the pre-proposal stag« and %r9 conducted 
under Federally chartered Advisorg Cofflmittees. A senior official of 
the program office responsible for the regulation acts as EPA's 
chief negotiator and par ty-at-interest. Parties representing 
legitimate and definable interests in the regulated community' 
environmental groups- and other affected stakeholders negotiate on 
behalf of their cons tituenc let. Once a regulation is proposed) all 
normal Administrative Procedure Act. S U. S. C. 591-553. req^iirements 
apply. 

National policy dialogues *r» similar to regulatory 
negotiations in many respects including the numbers and distribution 
of parties, and scope of issues. However, the goal of a dialogue is 
not to draft regulatory language. Typical goals may involve 
reaching a joint understanding of existing data and data gaps, or 
conducting an eiamination of the practical effects of certain 
policies pr regulations. Some dialogues are formally chartered 
Advisory Committees with resons ib i I ity to make a collective 
recommendation to the Agency; some dialogues are primarily for the 
purpose of information, data and/or opinion exchange. 

EPA has conducted twelve regulatory negotiations and more than 
ten national policy dialogues. 

c. SHORT TERM COLLABORATIVE AND CONSULTATIVE APPROACHES 

In 1966. the Regulatory Negotiation Project (now the Consensus 
and Dispute Resolution Program) expanded both its inhouse 
consultation role and its contracting availability to include other 
shorter term collaborative problem solving and consensus building 
processes for resolving regulatory and policy issues. These 
processes encompass list formal, shorter term models for 
collaborative input into decision-making than the Advisory 
Committees of negotiated rule making and policy dialogues, and 
include such activitiet as facilitated public meetings, workshops, 
forums and reundtablet. 

These activities itay consist of a single meeting or a series or 
related meetings. They may involve a small group specially selectei 
for particular expertise or may involve a large, very diverse group 

The purpose may vary from a chance to air differences, to 
information and data exchange, to generation of alternatives and 
options. Some of the skills expected of a dispute resolution 
professional in these activities are the ability to: construct a 
negotiated agenda, design an effective meeting format, manage 
logistics, diffuse or manage controversy- and accurately summarize 
information. 



330 RESOURCES AND LOGISTICS 



Pag* 25 
68-M4-0001 Section C 

Common to ill of tht short ttrm procsists is » col laborati vt 
«ppro4Ch that t*«ks to fo«t*r «n aarly •xchangt of information among 
«f ftctid interacts- so at. to load tc' graatar cominunication and 
collaboration. 

d ALTERNATE DISPUTE RESOLUTION PROCEEDINGS IN ENFORCEMENT 

In 1968 EPA began a pilot project in Region V to u«e mediated 
settlement negotiations and mediated fact finding to resolve some 
enforcement cases under the Comprehensive Environmental Responssi 
Compensation and Liability Act (Superfund). The pilot proved to be 
successful and efforts to eipand it further in Region V and to, 
establish the program in other Regions are underway. In addition, 
there has been increased interest in using AOR t« resolve cases 
under ether environmental statutes such as Resource Conservation and 
Recovery Act and the Clean Uater Act. 

«. TRAINING AND RESEARCH 

The Consensus and Dispute Resolution Program also encourages 
and sponsors training in negotiation and other dispute resolution 
and consultative processes for Agency management and staff and for 
participants in regulatory negotiations and policy dialogues. Past 
training courses have included collaborative decision making for EPA 
workgroup chairs< AOR orientation for headquarters and regional 
enforcement personnel and principled negotiation orientation for 
regulatory negotiation committees. 

In addition, the Program sponsors research into the 
feasibility^ effectiveness, costs and benefits of using specific 
dispute resolution or consultative processes to solve particular 
environmental regulatory, policy or enforcement matters. Past 
research has included a pilot program for use of mediation in 
Superfund cases, detailed case studies of the use of mediation in 
EPA enforcement cases, a survey of the use of consensus based 
processes throughout the Agency, and a study of public Interest 
group attitudes and needs regarding regulatory negotiation. 

f . FUTURE AOR APPLICATIONS AT EPA 

The Environmental Protection Agency is in the process of 
writing its ADR policy as required by the Administrative Dispute 
Resolution Act. In the course of developing this policy, decisions 
will be made as to the use of ADR in other areas of the Agency's 
responsibility such as procurement disputes, grants and assistance 
disputes, personnel disputes. Full application of ADR processes to 
these areas is likely to involve a pilot program and evaluation. The 
conduct of such pilots and implementation of of some or all 
recommendations based on the pilots are likely to be the subject of 
one or more delivery orders on this contract. Brief descriptions of 



EPA CONTRACT 331 



Pag* 26 
68-U4-0001 Svction C 

diiputfls common to EPA follow. 

<1) Permit Ditput** 

Psrmit diflput«9 arise in several phases of the facilitg ani 
site permitting process: permit issuance, permit modification, 
permit compliance. Disputants srt primarili^ the EPA. state or local 
agencies, and the permit holder or applicant Some permits are very 
difficult to negotiate successfully. In addition many permits that 
«re negotiated successfully may also become the subject of disputes 
with surrounding communities or public interest groups. Such 
disputes can delay issuance, modification or settlement of permits 
for significant periods of time which cost permit holders or 
applicants thousands of dollars, the agencies hundreds of ,a*orkhours> 
and the public valuable time. 

(2> Siting Disputes 

The siting of loca-lly unwanted land uses (LULUs) is subject to 
a phenomenon called "not in my back yard" or NIMBY. LULUs may 
include solid waste transfer stations, solid waste or haxardou* 
waste treatment, storage or disposal facilities, manufacturing 
facilites/ etc. Delays due to community acceptance of these 
facilities is common. Planning and information exchange between the 
entity proposing the facility and the local community is often 
non-eixstent> untimely or unresponsive often resulting in 
significant delays and misunderstandings. EPA may become aware of 
or brought into some of these disputes by any of the parties to the 
dispute. 

(3> Grants and Assistance Disputes 

EPA provides grants and assistance to state and local 
governments under a number of environmental laws. Disputes arise 
•*egarding the proper expenditure and timing of the use of these 
funds both during and after the projects are completed. Negotiations 
between governments (national, state, local, etc. ) arm sometimes 
difficult to resolve because they involve public officials and the 
expenditure of public funds. 

2. OBJECTIVES 

The objective of this contract is to obtain contractor support 
services in convening, facilitating and evaluating regulatory 
negotiations, policy dialogues, workshops and other dispute 
resolution and collaborative problem solving processes in the 
aforementioned areas. In addition, contractor support will include 
conducting alternate dispute resolution proceedings (for instance 
mediation, arbitration) for site or facility specific cases such as 
enforcement, compliance and permitting disputes. 

Dispute resolution services for other types of disputes that 
may be covered by EPA's ADR policy such as grants and assistance 
agreement disputes may also be provided by this contract. The 
contractor will also provide training of government employees in 



332 



RESOURCES AND LOGISTICS 



P^g* 27 



66-M4-0001 



Stction C 



negotiation «kill«< collaborative problem solving, facilitation, 
mediation, arbitration, and other alternate dispute resolution 
proceedings. 

C. 3 WORK STATEMENT 

A. LONO TERM PROCEEDINGS - RtCULATORY AND POLICY MATTERS 

Regulatory negotiations and policg dialogues occur in two 
stages, the first stage is an evaluation of the feasibility and 
advisablity of conducting the negotiation or convening, the second 
stage is actually conducting the negotiation. 

1. CONVENING 

The process of evaluating the use of dispute resolution or 
consultative processes for a particular issue is called convening. 
Regulatory negotiations, policy dialogues and other consultative 
processes require careful evaluation prior to proceeding. Both the 
potential subject matter and the potential participants must be 
evaluated carefully For regulatory negotiationc. EPA has set forth 
criteria (Attachment B> for both the subject of the negotiation and 
for the selection of parties. These criteria, based on negotiation 
theory, are also useful in evaluating the issues and parties for 
less formal dialogue and consultative processes. 

The Contractor shall assist in convening regulatory 
negotiations, policy dialogues, workshops and other consultative 
processes. 

Tasks performed by the contractor may include: 

o Selecting appropriate dispute resolution 

professional or team, taking into account knowled.;e 
of the subject, conflicts of interest, 
availability, eiperience in the particular ADR 
procedure and any other selection criteria that may 
be specified in the Delivery Order. Choice of 
dispute resolution professional shall be approveo 
by the EPA Project Officer (P0>, Delivery Order 
Project Officer (DOPO) 

o Meeting lelth the EPA PO. DOPO, and program office 
coordinator to discuss in greater detail the 
procedural and technical issues. 

o Assisting the EPA PO. DOPO and program office 
coordinator in developing a list of potential 
participant* and identifying a tentative set of 
issues to be addressed. 

o In consultation with the EPA PO. DOPO. and program 
office staff, assist in preparing and distributing 
background information on procedural and technical 
aspects and issues to potential participants in a 



EPA CONTRACT 



333 



P«9« 28 



ee-W4-0001 



Section 



dialogue or negotiation under expior«tion 

Contacting potential parties to discuss their 
possible participation in a particular negotiation 
or other consultative process. The dispute 
resolution professional shall discuss the opinions' 
positions and needs of each partg with regard to 
the issues involved including both the procedural V 
substantive technical aspects of the process Each 
party shall be asked to suggest additional groups 
that should be contacted to ensure that the 
candidate pool for participation is comprehensive. 
Each party shall be asked to identify the issues 
that should be covered in the chosen consultative 
process. 



If initial interviews with the key participants 
reveal that a consultative process (regulatory 
negotiation, policy dialogue' workshop series) is 
not feasible, the contractor shall notify the EPA 
PO. and OOPO. eiplain the difficulties (lack of 
interest' unequivocal opposition of a key party, 
disagreement about the definition of the problem, 
wrong forum or process' etc. ) and await further EPA 
guidance on whether to proceed to interview all 
potential participants. 

Providing verbal reports weekly to the program 
office EPA PO. it DOPO on the general progress of the 
convening effort, participating in Agency briefings 
as re<iuested to provide information on the progress 
of the convening effort. 



If a meeting appears appropriate to 
and program office coordinator and t 
contacting potential participants to 
scaping or organi xat ional meetings a 
along with EPA personnel, at any sco 
organizational meetings. The primar 
scoping meeting shall be to make a p 
determination if parties are interes 
process. The primary purpose of an o 
meeting shall be to determine if neg 
dialogue should proceed, and if so> 
discussion agenda and timetable for 
meetings and to ansuer any remaining 
regarding the process 

Handling all logistics of arranging meetings for 
participants; this includes scheduling' arranging 
facilities and notifying participants either 
verbally or in writing depending on the timeframe 
involved. 



the EPA PO. DOPO 
he parties. 

arrange 
nd presiding, 
ping or 

y purpose of a 
rel iminary 
ted in the 
rgani zat ional 
otiations or a 
to set the 
subsequent 

questions 



Preparing draft summaries or minutes of each 



334 RESOURCES AND LOGISTICS 



Pagt 29 

6S-W4-000t Section C 

matting and distributing th«m to th« participant* 

for thtir approval; distributing final sufflfflartts or 

minutes aftar commants hava baan raviawa4 and 
incorporatadi and 

o Provida a convaning raport to tha EPA PO. DOPO. and 
program offica coordinator. Summariza the results 
of convening discussions including such things as 
discussions of tha chances of a successful 
regulatory negotiation (policy dialogue, ^workshop 
series)> recommendation of p.otantial parties at the 
table> discussion of issues which will bring parties 
to the tablet and issues which tha parties cannot 
negotiate. Discussions should utilize as a 
guideline EPA's Selection Criteria for Regulator!^ 
Negotiations. 

o If a regulatory negotiation (policy dialoguo> 

workshop series) appears to be feaslble< propose a 
design in the convening report for the process 
including such things as nu«ber> lengthi location 
and frequency of moetings> reco««endation of 
potential participants whom EPA should invito> 
information or research necessary prior to or 
during the negotiation (dialogua> workshop series)> 
and estimated resources (EPA and facilitation) 
recommended for the success of the negotiation 
(dialogutf workshop series). 

b. NEGOTIATION PRELIMINARIES 

If the convening report concludes that a consultative process 
is feasible and EPA decides to proceed: 

o Assist EPA In contacting potential parties to 
obtain co«Milt«ents to participate In the 
negotiation (dialogue, workshop series). 

If a consultative process seeais likely/ proposing 
tentatlva ground rules or operating procedures for 
participants) and fixing a timetable for phases of 
work In facilitated dialogues and negotiations. 

o Arrange an initial organizational Meeting of the 

parties to discuss the issues Involved in revising 
the regulation (policy etc.). to gat public 
commitments to go forward from each of the parties, 
and to discuss ground rules for tha proctss. 

o Provide naetlng management support for this initial 
meeting. Including such activities as meeting 
arrangaaants and recording of ainutas. 

o Provida assistance and materials In conducting an 
orientation or training for committee members in 



EPA CONTRACT 335 



Pag* 30 
68-U4-0001 Section C 

the con«tnsu«-build ing procesc prior to tht 
negotiation. 

e. FACILITATION/ MEDIATION OF NEGOTIATIONS 

nang negotiation, dispute resolution end consultetive 
•pproeches to rcguletorg processes and decision-making require a 
fac ilitator or mediitor during the discussion and bargaining 
sasiions. The facilitator/mediator keeps the parties talking, 
listening, and moving— as much as possible — towards consensus. 

THE FACILITATOR /MEDIATOR SHALL NOT TAKE A POSITION ON THE 
MERITS OR RECOMMEND TO THE PARTIES UHAT THE SUBSTANTIVE RESOLUTION 
OF AN ISSUE SHOULD BE. The facilitator/mediator shall pr^ovide 
staff support (mediators, clerical and direct support, etc. ) as 
necessary to the task who mrt eiperlenced in managing, recording and 
summariting meetings. 

Tasks mag include the following: 

o Selecting appropriate dispute resolution 

professional or team, taking into account knowledge 
of the subject, conflicts of interest, 
availabilitg.' experience in the particular AOR 
procedure and any other selection criteria that may 
be specified in the Delivery Order. Choice of 
dispute resolution prof essionaKs) shall be approved 
bg the EPA Projett Officer (PO). Delivery Order 
Project Officer (OOPO) and program office 
coord inator. 

o Assistance/support of the convenor (if different 
than the facilitator/mediator) bg drawing on the 
rapport established in the convening phase. This 
support may include sharing with the facilitator 
all relevant perceptions, concerns and other 
details gathered during the convening phase. 

o Chairing all plenary sessions of negotiations or 
dialogue. The facilitator shall assist 
participant* in articulating their interests, 
identifying areas of agreement, and developing 
consensus solutions to the problems that divide 
the*. 

At the initial meetings, assisting the group on 
reaching consensus on the ground rules for 
negotiations or dialogue and refining and 
distributing written protocols reflecting this 
consensus. 

o Facilitating meetings of work groups (self-selected 
subgroups of the plenary group which address 
subsets of the issues) and. if several work groups 
meet simultaneously providing additional 



336 RESOURCES AND LOGISTICS 



P«g» 31 
6a-U4-0001 Section C 

f«cilit«tor« or support staff to assist other work 
groups, if tht project staff dete'-mines it useful 

o Handling all logistics of arranging meetings for 

participants - this includes scheduling, arranging 
facilities and notifijing participants. 

o Preparing summaries or minutes of each meeting and 
distributing them to the participants for their 
review and comment. 

Communicating with participants between meetings. 
as needed' to ensure that issues and concerns have 
been communicated accurately and that participants 
are adequately prepared for the neit meeting. 

Assistance in settling disputes during 

implementation of the agreement or settlement. 

2. SHORT TERM COLLABORATIVE PROBLEM SOLVING PROCEEDINGS 

EPA conducts a significant number of shorter term collaborative 
problem splving and consensus building processes for discussing and 
potentially resolving regulatory and policy issues. These processes 
encompass less formal, shorter term models for decision-making than 
the Advisory Committees of negotiated rule making, and may include 
such proceedings as: public meetings, technical conferences, 
facilitated workshops, forums and roundtables. The proceedings may 
involve a larger number of parties, and either a more diffuse or a 
more focused set of issues. The goal is usually not to reach a full 
consensus on the issues but to build upon existing consensus and to 
narrow the areas of disagreement. Common to all of these proc^ises 
is a consensual approach that seeks to foster an early enchange of 
information among affected interests so as to give input to EPA that 
will lead to basic regulatory and policy decisions that have the 
support of affected parties. 

Tasks perforated by the contractor may include the 
f ol lowing : 

o Selecting appropriate dispute resolution 

professional or team, taking into account knowledge 
of the subject, conflicts of interest, 
availability, eipenence In the particular 
procedure and any other selection criteria that, may 
be specified in the Delivery Order. Choice of 
dispute resolution professional shall be approved 
by the EPA Project Officer (P0>. Delivery Order 
Project Officer (DOPO) and program office 
coordinator. 

o Assisting the EPA PO, DOPO and prograei office 
coordinator in developing a list of potential 
participants and identifying a tentative sat of 
issues to be addressed 



EPA CONTRACT 337 



P«9t 32 
68-W4-0001 Section C 



o With tht EPA PO. OOPO and program offict coordinator 
consultation. prcpar»~and distribute background 
information on tho potential issu«s to potential 
participants in a dialogue or negotiation under 
eip loration. 

o Contacting potential parties to discuss their 

possible participation in the consultative process. 

o Working with EPA and the parties to construct a 
mutualli^ acceptable agenda and schedule for the 
meet mg. 

Chairing all plenarg sessions of negotiations or 
dialogue. The facil'itator shall assist 
participants in articulating their interest, 
identifying areas of agreement, narrowing areas of 
disagreement and articulating options and 
alternatives. 

o Facilitating meetings of work groups, breakout 

groups or caucuses if the project plan calls for 
facilitated Workgroup meetings. 

o Handling all logistics of arranging meetings for 
participantsi this includes scheduling, arranging 
facilities and notifying participants. 

o Preparing draft summaries or minutes of each 

meeting *ni distributing them to the EPA PO. DOPO 
program office coordinator and participants for 
comment, and upon revision, distributing final 
summaries or minutes. 

o Communicating with participants between meetings, 
if additional meetings are scheduled, to ensure 
that issues and concerns have been communicated 
accurately and that participants are adequately 
prepared for the next meeting. 

o Assistance in settling disputes during 

implementation of any agreements reached. 

3. ALTERNATE DISPUTE RESOLUTION SERVICES FOR SITE OR FACILITY 
SPECIFIC LITIGATION. SUCH AS ENFORCEMENT CASES. AND PERMITTINO 
DISPUTES 

EPA Regional Offices and Headquarters *rw involved in many 
site or facility specific disputes such as enforcement actions taken 
as a result of violation of environmental statutes or regulations, 
orders, decrees, or permits. Cases where EPA is taking enforcement 
action or when an outside party is suing EPA over a case specific 
situation can benefit from a variety of alternate dispute resolution 
services ranging from mediation to "min i-tr lals" In each of these 



338 RESOURCES AND LOGISTICS 



Pagt 33 
68-U4-0001 Section C 

caiffs * ntutral third partg skilled in disput* rtsolution procetsflf 
«s«ists tha parti** in raaching a mutuallg «cctpt«bl* solution to 
the cast. Tha contractor shall provide mediators, facilitators sr 
other dispute resolution professionals who are experienced in a 
variety of dispute resolution processes. 

Tasks <nav include the following: 

o Selecting appropriate dispute resolution 

professional or tean> taking into account knowledge 
of the subject< conflicts of interest* 
availabilitg< aiperience in the particular ADR 
procedure and ang other selection criteria that mav 
be specified in the Delivery Order. Choice of 
dispute resolution professionaKs) shall bm approved 
by the EPA Project Officer (PO). Delivery Order 
Project Officer (DOPO) and program office 
coord inator> and if appropriate) by the parties to 
the dispute. 

Review of potential cases with the EPA DOPO. case 
attorney! and technical staff to recomeiend whether 
a case is appropriate for ADR. 

o Contacting each of the parties' representatives or. 
counsel to propose the use of AOR and to eiplore 
the needs of each party and to design an 
appropriate process. 

Upon approval of the AOR design by the EPA DOPO. 
legal and techncical staff and the parties, the 
Contractor shall implement the process as designed. 

o Handling all logistics of arranging meetings for 
the partiesi this may include, but is not limited 
to: scheduling, arranging facilities, and notifying 
participants. 

e Preparing reports, summaries, drafts of agreements 
as relevant, necessary and assigned by the EPA PO % 
DOPO. Reports shall be presented in draft, and upon 
incorporation of comments, distributed in final. 

o Communicating with parties between meetings, as 
needed, to ensure that issues and concerns have 
been coeuaunlcated accurately and that participants 
*T9 adequately prepared for the neit meeting. 

o Assistance in settling disputes during 

implementation of agreements or settlements. 

4. ARBITRATION 

The Admin^istrativo Dispute Resolution Act. Public Law 101-992. 
provides for both non-binding and binding arbitration of disputes 



EPA CONTRACT 339 



P«gt 34 
6a-W4-0001 Stction C 

between the Federal governfflent «nd other parties Procedures to be 
followed bv the government are stated in some dei:ail in that act and 
provide the basis for agency arbitration policies. Eiecutive Order 
• 1S778 on Civil Justice Reform also allows for arbitration. 

On May 30> 1969 EPA promulgated rules under the Superfund 
Amendments and Reauthorization Act that provide procedures for 
binding arbitration of disputes arising from EPA - s Superfund cost 
recovery program. Cases to be arbitrated under this program must 
meet strict procedural and substantive requirements' must be for 
amounts under CSOO' 000 and must not have been referred to the 
Department of Justice. 

The contractor shall provide arbitration services foi« cases 
identified bg EPA attorneys under the Agency's arbitration policies. 
Arbitrators *t» not necessarily dispute resolution professionals, 
they may be retired judges< project managers, accountants, cost 
control specialists, etc. Arbitrators shall be selected on a 
case-by-case basis according to the procedures delineated in the Act 
and applicable rules and policies. Arbitrators may be dispute 
resolution professionals listed on this contract or expert 
consultants retained specifically for a case. Arbitrators shall 
fallow the procedures outlined in the Act. and applicable rules and 
policies during the arbitration process. 

Tasks may include the following: 

o Selecting appropriate arbitrator (s>. taking into 
account knowledge of the subject, conflicts of 
interest' availability, experience in the 
particular arbitration procedure and any other 
selection criteria that may be specified in the 
Delivery Order. Choice of arbitrator (s > shall be 
approved by the EPA Project Officer (PO). Delivery 
Order Project Officer (DOPO) and program office 
coordinator and if. appropriate, by the parties to 
the dispute. 

o Contacting each of the parties' representatives or 
counsel to explore the needs of each party and to 
design an appropriate arbitration proceeding. 

o Upon approval of the arbitration design by the EPA 
DOPO. legal and techncical staff and the parties, 
implementing the process as designed. 

Handling all logistics of arranging meetings for 
the parties. This could include scheduling, 
arranging, facilities, and notifying participants. 

o Preparing reports, summaries, drafts of agreements 
as relevant, necessary and assigned by the EPA PO if. 
DOPO. Reports shall be presented in draft, and upon 
incorporation of comments, distributed in final. 



340 



RESOURCES AND LOGISTICS 



P«g« 35 



68-W4-0001 



Section C 



Coflifflunic«ting with partits b«tw«tn mtttings. as 
n««d«d> to ensurt that issues and conctrns h«vt 
b**n coiiifflunicatcd accurately and that participants 
arc adequately prepared for the neit meeting. 

Isiuing decisions as appropriate under the 
Administrative Dispute Resolution Act and as 
provided for under other applicable regulations or 
pol ic ies. 



5. PROCESS EVALUATION 

The EPA Consensus and Oi»pute Resolution Program believes that 
many of EPA's decision making processes and disputes can b^e improvet 
by better structured interactions with parties^ either facilitated 
or not. Knowing more about the origins of disputes and the reasons 
for delays in decision making can help the Agency design dispute 
avoidance and dispute resolution systems that result in more 
efficient operation There are a number of types of studies that 
can be used to investigate ways to reducing disputes. 

Feasibility studies and surveys are useful in determining 
whether dispute resolution and consensus building techniques ar* 
effective in improving quality or reducing costs. Evaluating the 
reasons for success or failure of any process/proceeding provides 
lessons in design and implementation that are valuable in 
structuring future proceedings on related subjects. Pilot projects 
with careful evaluation steps built in can help the Agency refine 
dispute avoidance an4^>^esolution systems. 

A Delivery Order ^fepared by EPA will specify the type of 
dispute to be studied^ the general design of the study and the type 
of report needed. 

The Contractor shall provide support in accumulating and 
summarizing information on use of ADR in EPA disputes^ and in 
evaluating the sources of disputes, applications of various ADR and 
consultative processes to the resolution of disputes, conduct pilot 
projects and provide case status reports, case studies and 
evaluations. The EPA PC. OOPO will specify in each Delivery Order 
whether or not it is appropriate to utilize the same dispute 
resolution profession*! who provided the service in the original 
Delivery Ordor. 

Tasks performed by the contractor may include: 

o Selecting appropriate dispute resolution 

professional! taking into account knowledge of the 
subject matter, type of proceeding, conflicts of 
interest aiYd availability and any other selection 
criteria that may be specified in the Delivery 
Order. Choice of dispute resolution professional 
shall be approved by the EPA Project Officer (P0>. 
Delivery Order Project Officer (DOPO) and program 



EPA CONTRACT 341 



Page 36 
68-W4-0001 Stction C 

offic* coordinator. 

I| o Bastd on tht natd* stated in tht dalivary ordtr 

' propose « detailed study plan to the EPA PO, DOPO. 

and program office coordinator. 

ll o Upon EPA PO. OOPO and program office coordinator 

II approval proceed with the study or pilot project. 

Studies and reports mag include some or all of the 
following elements, studies are not limited to these elements: 

o Conducting interviews with some or all of the 
following: EPA staff, other Federal governieant 
staff, industry representatives, public interest 
group representative's, state or lacal officials, and 
I dispute resolution professionals who have handled 

similar disputes. 

o Reviewing literature on similar types of Issues or 

disputes. 

t 

o Observing negotiation and dispute resolution 
proceedings. 

o Reviewing documents, correspondence* dockets, case 
files and information generated by the parties to a 
d isputo. 

o Accumulating and summarizing information on the use 
and status of AOR proceedings in regional and head- 
quarters EPA cases. 

Roports shall be tailored to the needs and format 
J «pocified in individual delivery orders. 

6. TRAINING SUPPORT 

Contractor support shall be provided in the *r*a of training in 
\ negotiation, dispute resolution and consultative processes with the 

[ goal of achioving bettor, more efficient resolution of environmental 
' issues. Subvert shall be provided in environmental law as is needed 
to facilitate EPA staff and negotiating parties' understanding of 
the statutory and regulatory bases for rule or policy development. 
Participants in training seminars may be EPA and other government 
staff, and committee, dialogue or workshop group members as EPA 
considers necessary and appropriate. 

'I Tasks may includo: 

o Design of training seminars from 2 hours to several 
days long. 

o Writing and production of training materials for 

use in such seminart Printing shall be within the 



342 RESOLT^CES AND LOGISTICS 



P«g» 37 

6e-«*-oooi section : 

liait4tlon« stated in th* contract. EP* attains 
owntrihip o* all teaming Materials 

o Logittical ta»k» involvtl m eon^jetmg tht 

itainart «uch a* registration and notification of 
participant*, arranging *«ttinf facil;ti«s and 
cuppsrt. providing rtquired tupplias and t^uipAant 
for p'^tstntmg tut courtt 

o Conducting training «o««ions or toainart 

o OUtrifcutt Project Officer approved evaluation *o-«t 
to evarg trainee. The coaipleteS 'orat tnall se 
provided to the Project Officer after eac*« sestijr. 

or teainar. 

7. DIRECT SUP«»T AND TEChWICAL SUPPORT 

The tuccote or failure of a dispute resolution or col lakora tive 
frofele* solving process depend aost heavilg on cerrectl;^ identifying 
the parties' issues and proceeding H owever a nw*bor of logistic«l 
issues haye significant effects on the efficiencij and c-edihilitq of 
the proceeding. The logistical issues aost often encountered •t^: 
appropriate meeting facilities and equipment, access to neutral 
•iptrt consultants, and financial aid for participant travel to 
f^ticxpmtm in • proceed ing. 

Studies she* that the facilities provided for negotiation, and 
other consultative processes and training affect the ef'iciencv jnj 
^ualit^ of the proceeding nan; tiaes f ae i I i t i es/e^uipaent/sup; 1 ;es 
appropriate to the site or purpose of the group are not availabl* ar 
EPA en a ti»elv basis to conduct efficient ^ualiti^ proceedings 
Meeting rooas aust be adeq,uate in siie ano nuaber for t.^t pri.*:-*: 
use. E^uipaent (such as projectors, flip charts, aarkers) 
appropriate to the purpose of the aeeting shall be available "^c 
Contractor shall obtain saating facilities and e^uipaent as ord«-c« 
in Delivery Orders through lease or rental arrangeaents if thei< a"* 
not available at the Contractor's facilities. 

Conflicting factual assertions soaetiaes arise tk«t mm% re-^'^ir* 
evaluationi atsessaenti verification, calculation, and analysis c^ a 
specialist in the aarr»« field of concern. This specialist it Aost 
valuable if be/she i« not affiliated nith an^ of the parties to the 
negotiation, dialogue or dispute ^or eiaaplo. the coaaiittee aa^ 
require specialiied advice on statistical saa^ling aethods. eccnoaic 
analyses, or chealeal or feiolegical analgtical test aethods. 

There are ti»«f wken it Is necessary for the Agency to assist 

parties in covering eipenses incurred m participating in 
negotiations or dialogues because a balance of interest groups aust 
be present. The Federal Advisory CoiMittce Act and the Htgotiated 
Rulemaking Act both authorite this ti^pe o* assistance*. 

Tasks m»% include: 



EPA CONTRACT 343 



Page 38 
6e-U4-0001 Section C 



o Obt«ining meeting room facilities, equipment (such 
as but not limited to audio-visual equipments 
access to word processing and photocopging 
equipment) and other alloaiable> miscellaneous 
services' as are determined by the project staff to 
be appropriate and necessari^ in helping the parties 
achieve the goals of the assigned task. 

o Assistance in locating and retaining subject matter 
experts in such fields as statistics, economics, 
engineering' medicine, toiicology. epidemiology, 
agriculture, and other technical or specialized 
fields. Such support shall require the advance 
approval of the project and contracting officers. 

o Arranging for and reimbursing the travel (airline or 
train, automobile rental, and hotel bookings) of 
members of committees (nen FACA). workgroups, 
dialogue groups, workshops, when necessary, 
appropriate and assigned by the EPA PO. OOPO and 
program office coordinator in accordance with 
accomplishing work directly related to the Statement 
o# Work of this contract. 

• The ACO based on a recommendation- from the EPA PO shall ensure 
that such assistance is allowable and appropriate under the Fede^-al 
Advisory Committee Act. the Administrative Dispute Resolution Act. 
the Negotiated Rulemaking Act and or other statutory or regulatory 
authorities. 

8. SPECIAL OUTIES OF THE PRIME CONTRACTOR 

Because the EPA ecpects that performance of the work under ?his 
contract will involve the forming of a team of service providers, 
the prime contractor shall have the following tasks: 

o Conduct a yearly meeting of all team subcontractors and 

EPA program/contract managers to: (1) review EPA specific 
precadures for use of dispute resolution procedures; (2> 
raviaw the work performed the previous year with an 
•valuation of lessons learned and recommended changes. 
Total nuabar of contractor participants for this yearly 
aaatinf shall not eiceed SO without prior approval of the 
Contracting Officer. This yearly meeting shall ta^ke 
placa during the first month of the Base Period and only 
discuss Iteai (1) above; if exercised Option Periods 
I< II> III shall have the yearly meeting during the last 
month of tha period of performance to discuss both items 
(1) and (S) above. Option Period IV. if eierclsed. shall 
have a yearly meeting during the last month of the period 
of performance to discuss only item (2) above. 

• If a subcontractor does not have the capability in house, 
arranging tha logistics of meetings, particularly in the 



344 RESOURCES AND LOGISTICS 



P«g« 39 
68-U4-0001 Section C 

Uathlngton. D. C. area 

o If « subcontractor does not have the capability i" house. 
making non-federal government participant travel 
arrangements. 

o If a subcontractor does not have the capabiliti^ in house, 
tracking and reimbursing non-federal government 
participant travel eipenses. 

o If a subcontractor does not have the capability in house, 
handling the invoicing and collection of funds cost 
shared by non-EPA parties. 

C. 4 INCORPORATION OF CONTRACTOR'S TECHNICAL PROPOSAL 
(eP52. 210-120) (APR 1984) 

The Contractor's technical proposal entitled. "DISPUTE RESOLUTION 
SUPPORT SERVICES FOR REGULATORY NEGOTIATION AND OTHER CONSULTATIVE 
ACTIVITIES" dated 1/21/93, Revised Proposal dtd. 9/3/93, and BAFO 
dtd. 1/14/94. are incorporated bij reference and made a part of this 
contract. In the event of any inconsistency bet'ueen the provisions 
of this contract and the Contractor's technical proposal. th« 
contract provisions take precedence. 



EPA CONTRACT 



345 



68-M4-0001 



Page 42 



Section r 



SECTION F - DELIVERIES OR PERFORMANCE 



F. 1 NOTICE LISTING CONTRACT CLAUSES INCORPORATED BY REFERENCE 

NOTICE: The following solicitation provisions and/or contract 
clauses oertinent to this section are hereby incorporated bi^ 
ref •'■•nee: 

FEDERAL ACQUISITION REGULATION (48 CFR CHAPTER 1) 

NUMBER DATE TITLE 

52. 212-13 AUG 1989 STOP-WORK ORDER 



F 2 



REPORTS OF WORK ( EPAAR lSS2. 210-70) 
ALTERNATE I (APR 1984) 



The Contractor shall prepare and deliver the below listed 
reports to the designated addressees. Each report shall cite the 
contract number and identify the Environmental Protection Agencj as 
the sponsoring agency. 



F 2. 1 PROJECT SPECIFIC REPORTS 

All project specific repor 
•form. Upon receipt of written 
the contractor shall revise the 
as stated in this section and i 
Contractor shall submit reports 
'negotiation! dialogue> worksho 
in each delivery order. Speci 
addition to those aiinimun conte 
identified in individual delive 
not necessarily the universe of 
delivery orderit they are examp 

F 2 1. (a) CONVENING REPORTS 



ts shall be provided first in draft 
comments from the EPA PO and 00P0> 

report and distribute final copies 
n individual delivery orders. The 

pertinent to each proceeding 
p. case settlement etc. ) as ordered 
fie contents of each report, in 
nts specified below/ will be 
ry orders The following reports ar< 

reports that may be reiiuired in 
les of the most common reports. 



As directed in individual delivery orders> the Contractor shall 
furnish a Convening Report which assesses whether appropriate 
parties and issues aiist for dialogue or negotiation. 



minimum: 



The contents of each Convening Report shall include> as a 



346 



RESOURCES AND LOGISTICS 



n 



6e-W4-0001 



P4g« 43 



Section P 



(1) a list of ptrsons 4nd tntitiet who th« convenor h«« 
cent«cttdi 

(2> «n evaluation of the balance and mii of 
parties/interest group*, their desire to participate in 
good faith, their alignment on issues; 

(3) the design and scope of the recommended dispute 
resolution or consultative process, and. 

(4) additional relevant information to assist the EPA 
Project Officer and Delivery Order Project Officer 

in determining whether the item is a suitable candidate 
for the chosen consultative process (e. g. . dialogue or 
negotiation. ) 

The Convening Report shall be submitted to the following 
addressees in accordance with the schedule specified in each 
individual delivertj order. 



Distribution 



Number of Copies 

THREE (3) 
ONE (1) 
ONE (1> 



Addressee 

PROJECT OFFICER 
CONTRACTING OFFICER 
DELIVERY ORDER PROJECT 
OFFICER 



F. 2. 1. (b) PROJECT SUMMARY REPORT 

As directed in individual delivery orders, the Contractor shall 
furnish a Project Summary Report prepared by the facilitator of the 
dispute resolution/consultative process. The contents shall 
include: 

(1) Meeting Summaries with relevant and necessary 
attachments! 

(2) Copies of documents compiled by or agreed upon by 
til* comaiittoe (groundrules. agreements, statements. 
fact sheets etc. ) 



(3) Relevant substantive correspondence between the 
facilitator and the participants and between the 
participants themselves. 

(4) Process evaluation by the facilitator 
suMMarizing results of the negotiation, analysis of 
issues and balance of parties, procedural lessont 
learned< recommendation for improvements. 



EPA CONTRACT 



347 



68-U4-0001 



P«gt 44 



Stction F 



F 2. 1. (e) 



EVALUATION REPORTS 



As dir«cttd in' individual dclivcrg ordart, the Contractor shall 
'furnish an Evaluation Raport which provides an unbiastd evaluation 
cf a completed negotiation by a trained dispute resolution 
specialist (convenor/facilitator) not involved as a 
convenor/facilitator in that negotiation. 

The contents of each Evaluation Report shall include, as a 
miniAum: 

(1) Analy*!* of the substantive issues - 
whether they were appropriate and resolvable. 

(2) Analysis of the selection and balance of 
the partiesi whether all necessary parties 
were present and willing to participate in 
good faith. 

(3) Analysis of the design of the process 

and whether the design was appropriate to the 
issues and parties. 

(4) Analysis of whether adequate support was 
available to the EPA and the parties. 

(9) Recofflinendations on improvements in the 
convening processi design of the proceeding 

The Evaluation Report shall be submitted to the following 
addressees in accordance with the schedule specified in each 
individual delivery order. 

Distribution 



Number of Copiet 



Addressee 



THREE (3) 
ONE < t > 



ONE 



(1> 



PROJECT OFFICER 
CONTRACTING 
OFFICER 

DELIVERY ORDER 
PROJECT OFFICER 



F. 2. 1. (d) AOENDAS. EVALUATIONS. SUMdARIES 



In addition to providing copies of the above documents to the 
Project Officer and DOPO. the Contractor shall furnish the Project 
Officer and DOPO with copies of all meeting agendas, meeting 
summaries, training agendas, training evaluationt and training 
material and any other written deliverables listed in the delivery 
order. 



348 RESOURCES AND LOGISTICS 



Pagt 45 
68-W4-0001 Stction F 

F. 3 MONTHLY PROGRESS REPORT — INDEFINITE 

DELIVERY/INDEFINITE QUANTITY FIXED-PATE 
SERVICES CONTRACT (EPAAR 1552 210-74) (SEP 1990) 

<a) The contractor shall furnish FOUR (4) copies of « combined 
(nonthly technical and financial progress report briefly stating the 
progress madei including the percentage of the utork ordered and 
completed during th« reporting period. Specific discussions shall 
include difficulties encountered and remedial action taken during 
the reporting period and anticipated activity during the subsei^uent 
reporting period. 

<b> The report shall include the following financial information 
for each delivery order: 

<1) Delivery order number, date and titl*< 

<2) EPA client organization; 

(3) Period of performance' including explanations for any 
extensions that may be needed* 

(4) (dumber of hours, loaded rate applied, and corresponding 
total dollar amount expended for each employee (by name) within all 
labor categories employed during the reporting period; 

(5) Cumulative number of hours and corresponding dollar amounts 
expended to date by labor category; 

(6) Cumulative listing of all invoices submitted including 
invoice number, date submitted, period of invoice, total amount of 
invoice, and amount paid; 

<7) Any accumulated charges that have not been invoiced and 
reasons why they have not been billed; 

(8) Estimated costs and labor hours to be expended during the 
next reporting period. 

(c) The reports shall be submitted to the following addresses on 
or before the 20th of each month following the first complete 
calendar month of tke contract. Distribute reports as follows: 



Distribution 



Number of Copies Addresses 

THREE <3> PROJECT OFFICER 

ONE (1) CONTRACTING OFFICER 

ONE (1) DELIVERY ORDER 

PROJECT OFFICER 



EPA CONTRACT 349 



Pagt 69 
68-W4-0001 Section H 



14 NOTIFICATION OF CONFLICTS OF INTEREST REGARDING 
PERSONNEL 

(«) In addition to th« r«quirtffl*nt« of the contract clautt 
entitled "Organizational Conflict* of Inttrasti " th* following 
provision* with regard to tmployta pertonnal performing under thit 
contract shall applij until the earlier of the following two dates: 
the termination date of the affected einplovee(s) or the eipiration 
date of ttre contract. 

(b> The Contractor agrees to notifg immediatelij the EPA Project 
Officer and the Contracting Officer of (1) ang actual or potential 
personal conflict of interest with regard to any of its employees 
working on or having access to information regarding this contract) 
or (2) ang such conflicts concerning subcontractor employees or 
consultants working on or having access to information regarding 
this contract) when such conflicts have been reported to the 
Contractor. A personal conflict of interest is defined as a 
relationship of an employee' subcontractor employee> or consultant 
with an entity that may impair the objectivity of the employee> 
subcontractor employee) or consultant in performing their assigned 
work. 

(c> The Contractor agrees to notify each Project Officer and 
Contracting Officer prior to incurring costs for that employee's 
work when an employee may have a personal conflict of interest. In 
the event that the personal conflict of interest does not become 
known until after performance on the contract beginsi the Contractor 
shall immediately notify the Contracting Officer of the personal 
conflict of interest. The Contractor shall continue performance of 



350 RESOURCES AND LOGISTICS 



P«g« 70 
6e-U4-0001 Stetion H 

this contract until notified by thi Contracting Officer of the 
appropriate action to be taken. 

(d) The Contractor agree* to insert in any subcontract or 
consultant agreement placed hereunder! provisions which shall 
conform substantially to the language of this clause, including this 
paragraph (d>> unless otherwise authoriied by the Contracting 
Officer. 

H. 15 LIMITATION OF FUTURE CONTRACTING 

<a> The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause/ the Contractor shall 
be free to compete for contracts on an equal basis with other 
companies. 

(b> If the Contractor/ untftr the terns of this contract* or 
through the performance of work pursuant to this contract/ it 
required to develop specifications or statements of work and such 
specifications or statements of work art incorporated into an EPA 
solicitation/ the Contractor shall be ineligible to perform the work 
described in that solicitation as a prime Contractor or 
subcontrattor under an ensuing EPA contract. 

(c) The Contractor, during the lif« of the delivery order, and for 
a period of seven <7> years after completion of the delivery order; 

(1) shall not represent or act en behalf of any entity providing 
services other than of an AOR nature, pertaining to a site, facility 
or other specific matter for which the contractor previously 
provided AOR services under this contract without the prior written 
approval of the Contracting Officer, or his/her designee after the 
termination of this contract, and 

(2) shall not represent or act on behalf of any entity providing 
services of any nature pertaining to a site. facLlity or other 
specific matter for which the contractor previously provided AOR 
services under this contract, unless the contractor employee 
executed a non-disclosure agreement (Attachment K> prior to the 
initiation of the AOR services for EPA. 

(3) Within 19 calendar da^s of receipt of a request from the 
contractor for approval of future contract services under H. 19 (c) 
(1) above/ EPA will respond indicating the status of the request 
including (if applicable) an anticipated time of response and the 
issues being considered. Nothing herein shall excuse the contractor 
from responsibility for compliance with the provisions of Clause 

H. 19. 

(d) The Contractor agrees in advance that if any bids/proposals 
are submitted for any work that would require written approval of 
the Contracting Officer prior to entering into a contract subject to 
the restrictions of this clause/ then the bids/proposals are 
submitted at the Contractor's own risk Therefore/ no claim shall be 



EPA CONTRACT 351 



P«gt 71 
68-W4-0001 Section H 

mad* against th* Covtrnmant to rtcovtr bid/propo«al costs a« a 
diract cott whathar tha ra^uast for authorisation to antar into tha 
contract i« daniad_or approvad. 

(a) To tha aitant that accas* to propriatari^ or confidantial 
businas* or financial data of othar compania* is authoritad undar 
this contract, and as long as such data ramains propriatar^ or 
confidential, tha Contractor shall protact such data from 
unauthortiad usa and disclosura. 

(f) The Contractor agraas to insart in aach subcontract or 
consultant agraamant placad haraundar* provisions which shall 
conform substantial I'j to tha lan^uaga of this clausa> including this 
paragraph <f>« unlass otharwisa authoritad by tha Contracting 
Officar. 

(g> A raviaw procass available to tha Contractor whan an advarsa 
datarmmation is racaivad shall consist of a ra^uast for 
racons idaration to tha Contracting Officar or a raquast for raviaw 
submittad to tha nait administrativa laval within tha Contracting 
Officar 't organization. An advarsa datarmination resulting from a 
raquast for raconsidaration bg tha Contracting Officar will not 
preclude the Contractor from requesting a review bg the next 
administrative level. Eithftr a request for review or a request for 
reconsideration must be submittad to the appropriate level within 30 
calendar da^s after, receipt of the initial adverse determination. 

H. 16 PROJECT EMPLOYEE CONFIDENTIALITY AGREEMENT 

(a> Tha Contractor racognixes that Contractor amplovaes in 
performing this contract may have access to data, either provided bij 
the Government or first generated during contract performance, of a 
sensitive nature which should not be released to tha public without 
Environmental Protection Agency (EPA) approval. Therefore, the 
Contractor agrees t-o obtain Non-Oisclosure Agreements (See 
Attachment K) from all of its employees working on requirements 
under this contract. 

(b> If a contractor, through an employee or otherwise, is 
subpoenaed to testify or produce documents, which could result in 
such disclosurt* the Contractor must provide immediate advance 
notification to tha EPA so that tha EPA can authorize such 
disclosura or have tha opportunity to take action to prevent such 
disclosure. Such agreements shall be effective for the life of the 
contract and for a period of five '9) years after completion of the 
contract. 

(c) The EPA may terminate this contract for convenience, in whole 
or in part, if it daemfl such termination necessary to prevent the 
unauthori.^d disclosure of information to outside entities. If such 
a disclosure occurs without the written permission of the EPA 
Contracting Officer, the Government may terminate the contract, for 
default or convenience! or pursue other remedies as may be permitted 
by law or this contract. 



352 RESOURCES AND LOGISTICS 



P«g« 72 

68-W4-0001 Stction H 

'd) Th« Contractor further agr«e* to instrt in anij subcontract or 
consultant agrt»m«nt placed htreund-«r. provmons uhlch shall 
conform sub stant la 1 1 ij to the language of this clause, including this 
paragraph, unless otherwise authorized by the Contracting Officer. 

H. 17 CONFIDENTIALITY OF INFORMATION SUBMITTED TO A NEUTRAL 

Dispute resolution communication provided in confidence to a 
neutral shall not be disclosed to any party or considered data 
subject to Government ownership ( spec if ical ly ■ mediators' notes, 
recollections, or documents given to mediators in confidence by any 
party), unless such disclosure is provided for in the Administrative 
Dispute Resolution Act (Public Law No. 101-552): 

1> all parties to the dispute resolution proceeding and the 
nautral consent in writing and. if the dispute resolution 
communication was provided by a non-party participant, that 
participant also consents in writingi 

2) the dispute resolution communication has already been made 
pub lici 

3) the dispute resolution communication is required by stature to 
be made public, but a neutral should make such communication public 
only if no other person is reasonably available to disclose the 
communication; or 

4) a court determines that such testimony or disclosure is 
necessary to a) prevent a manifest injustice, b) help establish a 
violation of law. or c) prevent harm to the public health or safety 
of sufficient magnitude in the particular case to outweigh the 
integrity of dispute resolution proceedings, i.e. information 
submitted in confidence should normally not be disclosed. 



INTERIOR CONTRACT 



353 



AWARD/CONTRACT 



a. CdNTRAC . (/>«< ln$l M.-(ii;NO 

14-12-0001-30292 



3 tFf CCIIVL ( 

4/10/86 



6-4330-0001 



i. ISSUED BV 



U.S. Department of the Interior 
MineralB Management Service 
12203 Sunrise Valley Drive, MS635 
Reston. Virginia 22091 



7. NAME ANO ADDRESS OF CONTRACTOR 

The Mediation Institute 

Suite 525 

605 First Avenue 

Seattle, Washington 98104 



,. AOMINISTCHCO BV il/ui/i.rl/'oM /ir... .SI T ft! 5 

CODE I ?^^ _.. 

Mr. Jeffrey P. Petrlno, Contracting Officer 

Telephone (703) 435-6415 

1110 llerndon Parkway, Room 314 

Herndon, Virginia 22070 



FAClLiTv CODE 



N/A 

QfOBOKlCIN I I OTHER I 



9, DISCOUNT FOR PROMPT PAVME^ 



Net 30 days 



10 SUBMIT INVOICES 



N/A 
1 3~au'tmo"rTt V "? or^'sTn g otme f 



HO OPEN COMPE I 



. BE MADE BV 



CODE I 632_ 

Minerals Management Service 

Financial Management Division, P.O. Box 3260 

Reston. Virginia 22091 



. ACCOUNTING I 



rn 10US 



I I t\ use 253IC 



6-31-4330-435 CCN: 09816 Obligated: $85.0 00 



ISA. ITEM NO 



158 SuPPLlES/SEflvlCES 



15C QUANTITV 



50 UNIT 15E UNIT Pi=;iCE 



This is a cost type of contract as 
defined in FAR 16.302. 

Assistance of Neutral Conflict Resolv 
Rulemaking on Air Quality Regulation! 
Shelf (CCS). 



Total Estlmate4 Cost 4 Phase I 
Phase II 



tion Expert for Negotiated 
California Ovter Continental 



$ 31,776 
184,185 



15C. TOTAL AMOUNT Of CONTRACT ► , $21 5.961 







16. 


TABLE OF CONTENTS 


t/l |SEC 1 OESCniPTlON |PAGEISI 


VI |S£C 1 DESCRIPTION |PAr;-:;Sl 


PART 1 — THE SCHEDULE 


PART n - CONTRACT CLAUSES 


X 


A 


SOLICITATION/CONTRACT FORM 


1 


X 1 1 1 CONTRACT CLAUSES ; 26 




8 


SUPPLIESOn SERVICES ANO PHlCES/COSTS 




PART 111 - LIST OF DOCUMENTS. EXHIBITS AND OT HER ATTACH 


X 


c 


OESCRlPTlON/SPECS /WOR< STATEMENT 




X 1 J 1 LIST Of ATTACHMENTS i 34 







PACKAGING ANO MARKING 




PART IV - REPRESFNTATIONS AND INSTRUCTIONS 


X 


E 


INSPECTION AND ACCEPTANCE 






K 


RFPRESE Nl ATIO.\S. Cf RT IF ICAT IONS A\0 1 


X 


F 


DELIVERIES OR PERFORMANCE 




OTHERSTATtK',E\T<;OI OffEliORS ! 


X 


G 


CON'TRACT ADMINISTRATION DATA 






I |i\si*-? ci'\rs A».n\'.iic; s 1. .:!■'•- -> 1 




H 


SPEClAl. CONTRACT REOJIREMENTS 






M 1 fVAL'. ATlON f ACTOi^SrOF AU -.-L- 



CONTRACTING OFFICER WILL COMPLCTF ITEM I/OR IS AS APPLICABLE 



[x] 



t-o'.': 



CONinACTOR'S N€GOTlATCD ACnEE^ 
fen IhU dnfuntcnl and rtlum 5 , 



u 






[ A., 
/i" . 



*Z AND TITLE OF SIGNER tTyfi 



Jeffrey P. Petrlno 




198. NAME OF CONTRACTOR (same 85 NO . 7 > 



GPO : 1965 - <69-794 



354 RESOURCES AND LOGISTICS 



Contract No. lA-1 2-0001-30292 
Page 2 



PREAMBLE 



A. This contract consists of this document and the Contractor's technical 
proposal dated February 18, 1986, In response to the Minerals Management 
Service's Solicitation No. 3292 dated January lA, 1986. This document sets 
forth the requirements, specifications, conditions, and restrictions which 
are binding on both parties. The Contractor's technical proposal Is 
Incorporated by reference to the extent it describes the procedures, methods, 
and documentation of this work. Any discrepancies shall be settled In favor 
of the Schedule of this contract. There are no conditions, restrictions, or 
qualifications to this contract other than what Is expressed herein or in 
law. 

B« The "Representations, Certifications, and Acknowledgements," completed by 
the Contractor as part of his business and cost proposal of February 18, 
1986, are incorporated Into the contract with the same force and effect as If 
sec forth In full. 

CONSIDERATION 

A. It is estimated that the total cost to the Government for full performance 
of this contract will be $215,961, of «/hich the sum of $31,776 represents the 
estlnated reimbursable costs for Phase I, and the sum of $184,185 represents 
the estimated reimbursable cost for Phase II. 

B. Total funds currently available for payment and allotted to this contract 
are $85,000. Additional funds may be allotted from time to time by contract 
Bodlficatlon up to the full estimated cost of the contract over the entire 
period of performance (effective date through January 30, 1987); however, the 
Government will not be obligated to reimburse the Contractor for costs in 
excess of the current allotment, nor will the Contractor be obligated to 
continue performance and incur costs in excess of the amount allotted. For 
further terms on this incremental funding, refer to the general provision of 
this contract entitled "Limitation of Funds." 

C. It is estimated that the amount currently allotted will finance performance 
of the contract from the effective date through September 30, 1966; however, 
the Contractor shall not incur any costs beyond delivery of the Phase I final 
report unless and until a written notice to proceed is received from the DOI 
Contracting Officer. 



INTERIOR CONTRACT 355 



Contract No. 1«-1 2-0001 -30292 
Page 3 

SECTION C 

KSCRIPTION/SPECIFICATIONS/STATEMENT OF WORK 

C-1. BACKGROUND 

The Department of the Interior (DOI), under authority of the Outer Continental 
Shelf (OCS) Lands Act, Section S(a)(8), regulates the offshore oil and gas 
Industry for compliance with national ambient air quality standards pursuant 
to the Clean Air Act, to the extent that offshore activities significantly 
affect the air quality of any State. The DOI rules pursuant to Section 
S(a)(8) were finalized in March 1980. This authority extends to oil and gas 
facilities located in federally administered waters (beyond 3 miles from 
shore). Sources of air quality emissions situated within 3 miles from shore 
are administered by the U.S. Environmental Protection Agency, and the State 
and local Pollution Control agencies. 

In July 1981, the State of California filed a lawsuit against the DOI over 
its offshore air quality rules claiming that the rules promulgated in 1980 by 
former Secretary Andrus were: (1) Insufficient to protect the State's onshore 
air quality, (2) In violation of the Administrative Procedure Act and the 
National Environmental Policy Act, and (3) in violation of the Clean Air Act 
provision concerning conformity. The DOI has denied each of these claims. 
Formal hearings on arguments have been delayed because continuances have been 
granted to allow discussions between the litigants to reach an out-of-court 
settlement. The DOI and the State of California have fundamental differences 
over the nature and extent of the Federal offshore air quality rules concerning 
air quality emissions from OCS faclltles. The Citizens for a Better Environment 
(CBE) and the Coalition for Clean Air (CCA) have Intervened on the part of 
the State of California, and the Western Oil and Gas Association (WOGA), and 
12 caapanies have intervened on the part of the DOI in the lawsuit. The DOI, 
the State of California the CBE, the CCA, and WOGA are called herein "the 
parties to the litigation." 

Representatives from the DOI and the State of California have met several 
times to try to resolve Issues in the lawsuit out of court. As a result of 
these consultations, the DOI developed and published In the Federal Regis-ter 
(January 7, 1985) an Advance Notice of Proposed Rulemaking (ANPR) suggesting 
a regulatory framework to address. In part, some of the concerns expressed by 
California, and asking Industry and the affected public to comment. 

On April 8, 1985, the State of California, through its Secretary of 
Environmental Affairs, proposed to the DOI that a negotiated rulemaking 
process be used to develop a proposal for revised air quality rules for 
offshore California. The Secretary of the Interior and the Governor of 
California have agreed that this Is an appropriate process to explore for 
resolving the remaining air quality Issues. The negotiated rulemaking proce!;s 
was thought to be a better means to address everyone's concerns and possibly 
lead to agreement among all parties. Agreement may permit the parties to 
dismiss the existing lawsuit. The five parties to the litigation agreed upon 



356 



RESOURCES AND LOGISTICS 



Contract No. 14-12-0001-30292 
Page 4 

SECTION C-contlnued 

C-1. BACKGROUND (continued ) 

a "Summary Plan for Negotiating the Rulemaking on California Offshore Air 
Quality" which established a framework for the negotiations. The four other 
parties to the litigation named above have assisted the tOI In the selection 
of a contractor to serve as a facilitator and are expected to participate In 
the negotiated rulemaking. If consensus Is reached, the agreed upon rule 
would be published In the Federal Register as DOI's proposed rule, subject to 
the applicable Federal laws and regulations concerning rulemaking. 

To pursue a negotiated rulemaking, the DOI needs the assistance of a neutral, 
third-party conflict resolution expert (s) to act as a facilitator to guide 
the negotiation process and to assist the negotiating parties in reaching 
settlement. 

C-2. OBJECTIVE 

The objective of this contract is to enable the DOI to develop air quality 
requirements for OCS activities offshore California through a negotiated rule- 
making process. This contract will provide a third-party facilitator to 
assist DOI and other parties in attempting to resolve Issues In the lawsuit. 
In order to be effective, the facilitator oust function and be perceived as 
wholly unbiased. 

C-3. DEFINITIONS AND DESCRIPTIONS 



Negotiated Rulemaking : A negotiated rulemaking is a process which brings 
together the Agency proposing a regulation with the affected and Interested 
public to negotiate the basis for a proposed rule. In this instance, the sub- 
ject of the negotiated rulemaking is air quality rules for the California OCS 
areas. The end product of a successfully negotiated rulemaking is the basis 
for a proposed rule. The Agency, acting In good faith. Is conunltted to 
incorporating provisions on which there Is unanimous agreement In its proposed 
rule, subject to the applicable Federal laws and regulations concerning rule- 
making, while reserving the right to incorporate in its proposed rule 
provisions which the DOI believes to be appropriate even though consensus Is 
not reached as to such provisions, if any. 

Conflict Assessment : The purpose of the conflict assessment is to evaluate 
the willingness of the potential participants (which are larger in number 
than the five parties to the litigation) to negotiate and to assess whether 
there Is a chance for reaching agreement. The Federal Agency and the other 
parties to the litigation will use the results of the conflict assessment as 
one of the factors In their respective decisions to pursue negotiated 
rulemaking. 



INTERIOR CONTRACT 357 



Contract No. lA-1 2-0001-30292 
Page 5 

SECTION C-contlnued 

C-3. DEFINITIONS AND DESCRIPTIONS (continued ) 

Working Croups : Working groups, consisting of subsets of all the participants, 
may be established to allow In-depth discussion of one or more separate Issues. 
Up to two working group meetings may go on simultaneously. 

Facilitation : A facilitator Is a neutral third party whose role Is to guide 
the negotiation process and help the participants reach agreement. The 
facilitator focuses the negotiating parties on the Issues, helps them address 
the Interests of all the participants, and helps them reach agreements. This 
facilitation cakes place not only in formal meetings but also in Informal 
discussions among the parties. The facilitator's only authority is that which 
he/she is given by the participants, and it is never a decisionmaking, 
arbitration, or mediation authority. 

It is not the function of the contractor to: 

- Limit the ability of any party to define issues or concerns. 

- Draft or recommend a proposed rule. 

- Publicly or privately comment on the merits of the parties' issues, 
positions, or concerns. 

Groundrules : Subject to the terms of the facilitator's contract and applicable 
Federal laws and regulations to which the DOI is subject, the parties to the 
negotiations will establish groundrules to focus the negotiations which are 
enforced by the facilitator. One groundrule is that the negotiation process 
will focus only on the California OCS air quality rulemaking. The negotiating 
parties will be encouraged to establish milestones of progress that must be 
achieved if the process is to continue. 

Consensus : Consensus is the goal of the negotiation process. Consensus is 
defined to be unanimous agreement. If all parties cannot agree on a particular 
provision, then no formal recommendation on that provision would emerge from 
the negotiations. 

Recording : Recording of meetings, such as using flip charts, etc., is an 
effective means of focusing attention, displaying information, assuring 
common understanding, and making progress, in addition to providing a record 
of the proceedings. 

Speaking Papers : These papers outline the discussions that will be held with 
each party during the conflict assessment. The papers will vary depending on 
the party being interviewed and are not information collection instruments as 
defined by the Office of Management and Budget. 

C-4. SCOPE OF WORK 



A two-phased program of consultant services is contemplated. Phase I consists 
of the preparation of the conflict assessment. Following completion of Phase 



358 RESOURCES AND LOGISTICS 



Contract No. 14-12-0001-30292 
Page 6 

SECTION C-contlnued 

C-4. SCOPE OF WORK (continued ) 

I of the contract, the DOI, In consultation with the other parties to the 
litigation, will decide whether It will require the contractor to provide 
services In Phase II. The contractor shall not Incur any costs beyond delivery 
of the Phase I final report unless and until a written notice to proceed Is 
received from the DOI Contracting Officer. Phase II consists of two elements: 
(a) development of agreed Issues and facts and (b) negotiation sessions. 
During the Initial Phase II sessions, the parties will establish the ground- 
rules and a technical basis for the negotiation sessions, Including the 
Issues to be resolved. Following completion of these sessions, DOI, In 
consultation with the other parties to the negotiations, will decide whether 
to proceed with the negotiation sessions. During the negotiation sessions, 
the negotiators will work towards resolution of the identified Issues. 

Phase 1 ; For this portion of the contract, the contractor will conduct a 
conflict assessment. The contractor shall work with DOI staff and management 
and the other parties to the litigation to perform the conflict assessment. 
The contractor shall perform the following tasks: 

Item 1 ; Develop and maintain a list of potential parties to the 
negotiation as Identified by DOI and the other parties to the litigation and 
independently locate additional individuals and groups having a stake or 
interest in developing the proposed rules. 

Item 2 ; Develop a plan (Including results of Item 1) and appropriate 
speaking papers (see definitions) for conducting telephone and personal Inter- 
views with parties identified in Item 1 and submit copies of the plan and 
speaking papers to each party to the litigation for review and approval. 

Item 3 ; Conduct telephone interviews with parties identified in the 
approved plan (Item 2) to determine their willingness to participate in the 
conflict assessment. Discuss any preconditions to negotiation and discuss 
the authority of each party to represent its particular constituency. 

Item i : Meet individually with key parties identified In the plan (Item 
2) and conduct personal interviews to determine at least the following for 
each party: 

- Issues and underlying interests. 

- Current and past positions and flexibility on all issues. 

- Desire to participate in the negotiated rulemaking process and 
willingness to negotiate. 

- Charter or the ability to represent effectively and to make commitmencs 
for constituencies. 

- Personal resources available to participants and availability of 
facilities for hosting meetings. 

- Any additional preconditions or concerns that should be addressed. 

- Ability of parties having similar interests and positions to work 
together in coalitions. 



■ J 



INTERIOR CONTRACT 



359 



Contract No. 
Page 7 



14-12-0001-30292 



SECTION C-contlnued 

C-4. SCOPE OF WORK (continued ) 

As necessary, followup Interviews or Interviews with some members of groups 
or parties shall be conducted by telephone. 

Item 5 ; Provide weekly oral reports to the DOI Contracting Officer and 
the Contracting Officer's Technical Representative (COTR) on the status and 
progress of the conflict assessment process. Including discussion of contacts 
made, meetings held, and any questions regarding the contractors work requiring 
resolution by DOI or by other parties. Discuss with the Contracting Officer 
and COTR any difficulties In performance that may significantly alter the 
contractor's approved work plan, proposed solution by contractor, required 
action and potential changes in cost or schedule as a result of such 
difficulties. The tone of these discussions will be strictly neutral, and 
the purpose Is solely to manage the contract. 

Item 6 ; Describe the conflict assessment process, analyze the results, 
and prepare a draft conflict assessment report on the results of interviews 
along with a professional statement of opinion on the suitability and prospect 
for success of the proposed negotiation considering the balance/mix of parties 
Involved, the scope and complexity of the Issues, the desire/ability of the 
parties to negotiate in good faith, and any requested preconditions. Ideally, 
It will be a 'consensus document" as described in the contractor's proposal. 
The report shall list all parties Interviewed and contacted and shall discuss 
for each party the subjects listed in Item 4 and all other pertinent 
information. Copies of any written materials used in interview discussions 
or written material provided by potential parties to the negotiation shall be 
appended to the report. Confidential information essential to a reasoned 
decision on whether to proceed with negotiation shall be synopslzed in the 
report without attribution. No comments, positions, or suggestions are for 
attribution to any individual or party without their express consent. 
Versions of the draft report will remain a work product of the facilitators 
until the parties to the litigation have had opportunity to discuss the 
content and findings. No Judgement will be offered as to any specific 
individual's candldness or cooperation. Should it be determined that It is 
not appropriate to proceed with negotiations, no individual or party will be 
singled out as the reason for such an assessment. Also, the report will 
Identify and discuss possible coalitions for Phase II negotiations and the 
types of groundrules that would be further developed in Phase II. 

Each facilitator on the contractor's team should attend one meeting in 
Washington, D.C., with representatives of the parties to the litigation to 
review and discuss findings and the draft conflict assessment report. Prepare 
a final report Including corrections and additions aS' required and agreed to 
(see Specifications). This report shall be submitted to [X>I and to the 
parties to the litigation. 



360 RESOURCES AND LOGISTICS 



Contract No. U-1 2-0001-30292 
Page 8 

SECTION C-contlnued 

C-4. SCOPE OF WORK (continued ) 

Item 7 : The facilitator shall assist the parties to the litigation to 
agree on a list of parties to be Included In the Phase II sessions and working 
group meetings. (These agreed-upon participants are designated as the parties 
to the negotiations.) 

Phase II : The DOI, In consultation with the parties to the litigation, 
will take up to 21 days from the date of receipt of the final conflict assess- 
ment report to decide whether to proceed with Phase II of the contract. 
Phase II consists of the facilitation of the development of Issues and agreed 
facts and of negotiation sessions. The DOI may terminate the contract at any 
time and proceed directly to rulemaking or solicit new proposals to perform 
work in Phase II. As a facilitator, the contractor shall maintain a neutral, 
third-party position, taking no direction from any of the Individual 
negotiating parties. Including the negotiating team representing the DOI. As 
a result of the Phase I consensus and further consensus reached at the first 
Phase II meeting (see Item 12), the contractor may be directed by the DOI 
Contracting Officer to submit a new business and cost proposal for performance 
of Phase II which may lead to negotiation of a contract modification. All 
direction for fulfillment of contract obligations will come from the DOI 
Contracting Officer and COTR, not part of the DOI negotiating team. Within 
the llDLlts of this contract, the contractor shall continue in this phase 
until settlement is achieved or until the DOI determines that the negotiation 
will be terminated. The contractor shall perform the following tasks during 
this phase: 

Item 8 : Manage certain logistical support (see C-6, Assumptions) for 
meetings. Serve as a point of contact for participants and coordinate notifi- 
cation and arrangements for meetings working with the host group. Maintain 
accurate records of all meetings and prepare meeting summaries for participants. 

Item 9 ; Assist negotiating parties in forming coalitions of like positions 
and interests. The contractor will be available to assist individual parties 
or coalitions, as requested by the party and as consistent with the role of 
an Impartial facilitator. Activities described in this task are to be per- 
fomed coincidental ly during the agreed number of Phase II negotiation sessions. 

Item 10 : Provide all necessary supplies, such as flip charts or other 
graphic materials, for facilitating and recording all meetings. 

Item 11 : Report orally monthly to the Contracting Officer and COTR on 
status/process of Phase II. Provide DOI and the parties to the negotiations 
each with one (1) copy of all meeting summaries and written progress reports 
on the negotiation on a quarterly basis. Reports are due the 10th day of the 
month following the end of each quarter and shall include the following: 

- A summary of all work performed during the preceding 3 months including 



INTERIOR CONTRACT 



361 



Contract No. 
Page 9 



lA-12-0 001-30292 



SECTION C-contlnued 
C-4. SCOPE OF WORK (continued ) 

staff used for each meeting; 

- A summary of all the Phase II sessions Including Issues addressed and 
progress on issues, noting where negotiations are progressing and where 
they are stalled on particular issues; 

- A sunnary of any manpower, schedule, or cost problems encountered during 
the preceding quarter including an assessment of probable effect on the 
contractor's work, costs, or schedule, and statements of corrective 
action proposed; and 

- A summary of plans or projections for contractor work during the next 
quarter including any new techniques or methods that are proposed to 
move Che negotiations forward. 

Item 12 : Facilitate as many Phase II sessions as are established within 
the contract scope and agreed upon by the parties to the negotiations pursuant 
to the groundrules they have established. During these initial sessions, the 
contractor will act as a facilitator to assist the parties to: 

- Agree on the Identity of the issues to be resolved, simplify the issues, 
and Identify the key elements of each issue. 

- Agree on undisputed facts and issues. 

- Agree on methods to resolve remaining disputed facts or Issues. 

- Agree on other matters that nay assist in the development of a consensus 
Including ground rules and milestones for the Phase II sessions. 

A negotiation session may include several working group meetings. At times, 
two working group meetings may occur simultaneously. In such circumstances, 
the contractor must have sufficient personnel to facilitate both work group 
meetings. 

Item 13 : Continue the development that began in Phase I of draft ground 
rules for the negotiation. Develop final ground rules in conjunction with 
the negotiating parties. 

Item 1^ : Prepare a report concurred in by all the negotiating parties 
listing the items of agreement and unresolved disputed issues considered under 
Phase II. 

Item IS : Assist negotiating parties in developing and producing any 
necessary instrument(s) of agreement or settlement. 



362 RESOURCES AND LOGISTICS 



Contract No. lA-12-0001-30292 
Page 10 

SECTION C-contlnued 

C-4. SCOPE OF WORK (continued ) 

Item 16 : Submit a draft and final project report Co DOI and to the parties 
to the negotiations, and attend one meeting In Washington to discuss the 
negotiations and the draft report following the conclusion of the negotiation 
(successful or otherwise). The report document will discuss the result of 
Che negotiation, if successful, as follows: The substance of the negotiation 
including facts and Issues identified, resolved, and outstanding; a list of 
participants and whom they represented; a tabular or narrative list of meeting 
times, daCes, places; solutions and alternatives explored; positions of Che 
pardes; and all agreements reached. In Che absence of a negotiated agreement, 
the contractor will confer with Che pardes Co Che negotiation to develop a 
report that describes Che Issues in concendon, Che parameCers of Che disagree- 
menc , and Che relaclve positions of the parties. 

C-5. REPORT SPECIFICATIONS 



A. Draft reports shall be typed double spaced and submlcced as scaced in 
Secclon F. Drafts shall be editorially and graonaclcally correcc. Drafts 
received with numerous editorial and grammatical errors or not containing the 
required discussions will be returned to the contractor without further 
Inspection by DOI. In such cases, addldonal coses of correcdng draft 
reports and resubmitting them and for any resulting time delay will not be 
allowable costs under the contract. 

B. The contractor shall make additions, revisions, or corrections relating 
to report format, facCual error, and correcc omissions or deficiencies as 
specified by Che Concracclng Officer or COTR. The concraccor shall make 
addldons, revisions or correcdons reladng Co Incerpretatlon of data, 
judgments, or recommendations as mutually agreed. 

C. The contractor shall prepare a final report, neatly typed, single spaced, 
in accordance with any corrections or additions as required and agreed to. 

D. All reports submitted under Che Cerms of chls concracc shall contain the 
following Information on the cover page: 

(1 ) Name and business address of the contractor. 

(2) Contract number. 

(3) Original contract dollar amount plus the amount(s) of each additional 
Dodlf ication(s). 

(4) Competitive or noncompetitive nature of the procurement. 

(5) Name of the bureau or office, sponsoring program individual (the COTR), 
and his/her office name and address. 



INTERIOR CONTRACT 363 



Contract No. U-1 2-0001-30292 
Page 11 

SECTION C-contlnued 

C-€. ASSUMPTIONS 

The following assumptions have been made concerning the scope of work (see 
Article C-A) In estimating the total estimated cost of the contract. 

A. Related to Phase I, Item 3 : 

- Approximately 40 parties have provided comments to the Department 
of the Interior (DOl) on the Advance Notice of Proposed Rulemaking 
(ANPR). 

B. Related to Phase I. Item 4 : 

- Most commenters are located in California. 

- A single two-(2-)week trip to California for personal Interviews is 
envisioned. 

C. Related to Phase II : 

Assumptions for meeting in Phase II are as follows: 

- Twelve (12) meetings among parties to the negotiations. These may 
be full group meetings or may be up to two (2) simultaneous work 
group meetings. Please note that the DOI reserves the right, which 
shall be exercised only after consultation with the parties to the 
negotiations, to Increase or to decrease the number of Phase II 
meetings. 

- These sessions may be augmented by informal communications with the 
Individual parties. 

- At least two (2) facilitators/recorders will attend each session 
except the first which will be attended by all four (A) facilitators. 

- Each negotiation session lasting 2 or 3 days — assume six (6) 3-day 
sessions and six (6) 2-day sessions. 

- Meetings will be held in Los Angeles, California. 

- Meeting facilities will be provided by the participants, as they 
determine. 

D. Related to Draft Report Review Meetings (Phase I, Item 6; Phase II. 
Item 16 ): 

- Each of two (2) meetings for draft report review will take place at 
DOI headquarters, Washington, D.C. area with all parties to the 
litigation. 



364 RESOURCES AND LOGISTICS 



Contract No. lA-1 2-0001-30292 
Page 12 

SECTION C-contlnued 

C-6. ASSUMPTIONS (continued ) 

E. The following Infonnatlon will be available to Che contractor from 
DOI: 

- List of commenters on the ANPR 

- Related laws and regulations 

F. The contractor shall be responsible for the following: 

- all contractor travel arrangements, accoaimodaclons , and subsistence 
requirements 

- staff at all meetings sufficient to meet contract requirements 

- supplies for all contractor tasks for all meetings 

- meeting on the schedule of the negotiation participants 

- production/reproduction of sufficient quantities of all deliverables, 
as specified 

- logistical arrangements for meetings and coordination/notification 
of participants. 

G. The contractor shall not be responsible for the following: 

- providing meeting space 

- travel/lodging arrangements for negotiating parties 

- recording at public hearings or scoping meetings. 



(NOTE: SECTIONS D AND E ARE OMITTED.) 



INTERIOR CONTRACT 365 



Contract No. 14-12-0001-30292 
Page 15 

SECTION F 

DELIVERIES OR PERFORMANCE 

F-1. PERIOD OF PERFORMANCE 

The period of performance of this contract begins on April 10, 1986, and Phase 
I ends on June 17, 1986, unless otherwise mutually agreed by the parties to 
the contract. This will be followed by a possible 3-week period for DOI and 
other parties to the litigation to decide whether to proceed with Phase II, 
and tentatively 30 weeks for Phase II, If undertaken, for a total contract 
period of A2 weeks from the date of the contract award. 

F-2. STOP-WORK ORDER (APR 198A) 

A. The Contracting Officer oay, at any time, by written order to the 
Contractor, require the Contractor to stop all, or any part, of the work 
called for by this contract for a period of 90 days after the order Is 
delivered to the Contractor, and for any further period to which the 
parties may agree. The order shall be specifically identified as a 
stop-work order issued under this clause. Upon receipt of the order, the 
Contractor shall immediately comply with its terms and take all reasonable 
steps to minimize the Incurrence of costs allocable to the work covered 

by the order during the period of work stoppage. Within a period of 90 
days after a stop-work is delivered to the Contractor, or within any 
extension of that period to which the parties shall have agreed, the 
Contracting Officer shall either: 

1. Cancel the stop-work order; or 

2. Terminate the work covered by the order as provided in the Termination 
clause of this contract. 

B. If a stop-work order Issued under this clause is canceled or the period 

of the order or any extension thereof expires, the Contractor shall resume 
work. The Contracting Officer shall make an equitable adjustment in the 
delivery schedule, the estimated cost, the fee, or a combination thereof, 
and In any other terms of the contract that may be affected, and the 
contract shall be modified. In writing, accordingly, if: 

1. The stop-work order results in an increase in the time required for, 
or in the Contractor's cost properly allocable to, the performance of 
any part of this contract; and 

2. The Contractor asserts a claim for the adjustpient within 30 days 
after the end of the period of work stoppage; provided, that, if the 
Contracting Officer decides the facts justify the action, the 
Contracting Officer may receive and act upon the claim asserted at 
any time before final payment under this contract. 



366 RESOURCES AND LOGISTICS 



Contract No. 14-12-0001-30292 
Page 16 

SECTION F-contlnued 

F-2 . STOP-WORK ORDER (APR 198«) (continued ) 

C. If a stop-vork order Is not cancelled and the work covered by the order Is 
terminated for the convenience of the Governoent , the Contracting Officer 
shall allow reasonable costs resulting from the stop-work order In arriving 
at the termination settlement. 

D. If a stop-work order is not cancelled and the work covered by the order is 
terminated for default, the Contracting Officer shall allow, by equitable 
adjustment or otherwise, reasonable costs resulting from the stop-work 
order. 

F-3. DELIVERABLES 

The following list summarizes the deliverable products and their required 
dates for delivery. Deliverables shall be submitted as indicated, with one 
(1) copy each to the COTR and Contracting Officer In addition to any others 
specified. Item Numbers are those specified In Article C-6, Scope of Work. 

A. Phase I 

1. Conflict Assessment Plan and Speaking Papers (Item 2 ): Due April 17, 1986. 
One (1) copy to each party to the litigation. 

2. Oral Reports on Status of Conflict Assessment (Item 5 ): Weekly oral 
report (via telephone) to the Contracting Officer and COTR until the week the 
draft Conflict Assessment is submitted. 

3. Draft Conflict Assessment (Item 6 ); Due A-I/2 weeks after approval of 
Conflict Assessment Plan (May 28, 1986, based on approval by April 24, 1986). 
Three (3) copies to DOI and one (1) copy to each party to the litigation. 

4. Review Meeting (Item 6 ): With the Parties to the Litigation in Washington, 
D.C. tentatively on June 3, 1986. 

5. Final Conflict Assessment (Item 6 ): Due two (2) weeks after return of 
draft Conflict Assessment and comments (June 17, 1986, based on approval by 
June 3, 1986). Three (3) copies to DOI and one (1) copy to each party to the 
litigation. 

B. Phase II 



1. Oral Reports (Item 11 ): Due monthly via telephone or in person to the 
COTR and Contracting Officer. Monthly reports will continue throughout this 
phase of the contract. 

2. Meeting Summaries (Item 8 ): Due one (I) week following each negoti<ating 
meeting. One (1) copy to each party to the negotiations. 



INTERIOR CONTRACT 367 



Contract No. lA-1 2-0001-30292 
Page 17 

SECTION F-contlnued 

F-3 . DELIVERABLES (continued ) 

3. Quarterly Progress Reports (Item 11 ): Due the 10th day of the month 
following the preceding quarter. One (1) copy to each party to the 
negotiations. 

A. Draft Ground Rules (Item 13 ): Due one (1) week after initiation of Phase 
2. One (1) copy to each party to the negotiations. 

5. Final Ground Rules (Item 13 ): Due one (1) week after agreement by 
negotiating parties. One (1) copy to each party to the negotiations. 

6. Issues/Facts Report (Item lA ): Due one (1) week after being directed to 
complete the report by the Contracting Officer and COTR. One (1) copy to 
each party to the negotiations. 

7. Instrument(s) of Agreement/Settlement (Item 15 ): Due one (1) week after 
being directed by the Contracting Officer and COTR. One (1) copy to each 
party to the negotiations. 

8. Draft Project Report (Item 16 ): Due two (2) weeks after conclusion/ 
termination of negotiations. Three (3) copies to each party to the 
negotiations. 

9. Final Project Report (Item 16 ): Due one (1) week after comments/ 
instructions received on the Draft Project Report. Three (3) copies to each 
party to the negotiations. 

F-A. PERFORMANCE EVALUATION CRITERIA 

Contractor performance will be evaluated on the following criteria: 

- Attends all scheduled meetings with sufficient staff 

- Manages the negotiation process effectively 

- Maintains required confidentiality and neutrality 

- Adheres to best professional standards and Judgment 

- Provides necessary supplies and materials 

- Provides for timely receipt of all deliverables 

- Manages meeting logistics and arrangements timely and effectively. 

F-5. GOVERNMENT DIRECTION . ' . 



The Government Contracting Officer will provide direction to, and control of, 
the contractor In order to prevent any misinterpreted tasks or inappropriate 
line of investigation or study during the period of performance; however, 
such direction or control will not interfere with the confidentiality and 
neutrality required of the Contractor during each phase of contract performance. 



CHAPTER 9 - NEGOTIATED RULEMAKING AT THE 
STATE LEVEL 



The notion of consensus-building approaches to rulemaking at 
the state level is not new. As long ago as the turn of the century, 
consensus-building techniques were used to develop administrative 
agency awareness of, and responsiveness to, the interests of persons 
likely to be affected by various state rules. The agencies would 
convene various interested parties to get their advice and frequently 
would adopt their suggestions. 

These practices have apparently developed irrespective of any 
savings that might result from avoidance of litigation over state 
regulations. Such litigation is relatively rare because of procedural 
safeguards such as legislative or executive oversight committees. 
Moreover, contesting of rules at the state level tends to be dealt 
with through political rather than legal means. Many of the 
approaches listed below have come to be considered normal 
administrative procedure. This experience supports the view that 
attempts to build a consensus for regulatory choices have benefits 
that go well beyond prospective savings from avoidance of 
litigation. 

Use of negotiated rulemaking processes similar to the concept 
described in the Sourcebook has been reported in numerous states, 
primarily for resolving environmental disputes. Several states have 
also used a consensus-building technique referred to as a "policy 
dialogue" on a number of public policy issues. Participants in 
policy dialogues are not attempting to draft a proposed rule as in 
negotiated rulemaking, but are using a similar negotiating approach 
to identify issues and work cooperatively to resolve those issues. 
The degree of formality can vary with the particular circumstances, 
and state agencies have adapted the concept to their own needs. 

Several state legislatures have considered reg-neg bills and a 
small number have enacted such legislation. In one state, reg-negs 
have been conducted under an executive order. The provisions in 
Montana, Nebraska, and New York are modeled on the federal Reg- 
Neg Act. 



369 



370 STATE REG-NEG 



• Negotiated rulemaking is encouraged under amendments to the 
Idaho Administrative Procedure Act, Idaho Code 67-5206(3)(e) and 
67-5220 (1993), which direct the attorney general to promulgate 
procedural rules to facilitate reg-neg. 

• Indiana's Rules for Alternative Dispute Resolution, Burns Ind. 
ADR 1.1 (1994), list negotiated rulemaking as a "recognized" 
alternative dispute resolution method. 

• Montana Negotiated Rulemaking Act of 1993, House Bill 317. 

• Nebraska Negotiated Rulemaking Act (1994), R.R.S.Neb. §84- 
919.01 and §§84-921 to 84-932. 

• In June 1992, New York Governor Mario Cuomo signed 
Executive Order No. 156, Establishing a Negotiated Rulemaking 
Program. 

• Legislation enacted in Oklahoma in 1994, 74 O.S. §485 (HB 
2446, §5), authorizes cabinet secretaries to make recommendations 
to the Oklahoma Advisory Committee on Intergovernmental 
Relations regarding federal regulatory actions that should be 
prepared using a negotiated rulemaking process. 

• Statutory amendments in Washington in 1993 and 1994 provide 
for consideration of negotiated rulemaking and "pilot rulemaking" 
(chap. 34.05.310 (l)RCW). 



Ne gotiated Rulemaking Activity 

• The Maine Department of Transportation used negotiated 
rulemaking to restructure the state's transportation planning 
process. After six months of negotiations, an advisory committee 
reached consensus on a draft regulation that was adopted without 
substantial change. (See J. W. Reitman and A. R. Gosline, 
Transportation Planning Model for the Future: Maine's road from 
referendum to reform. Consensus (No. 22), p. 1, Public Disputes 
Network, Harvard Program on Negotiation, April 1994.) 

• In 1992, when New York Governor Mario Cuomo signed 
Executive Order No. 156 establishing a reg-neg program, the 
Department of Environmental Conservation was directed to conduct 
two reg-negs. These proceedings considered a rule to govern air 
emissions from dry cleaning facilities (see Kuwik, Using the 
Negotiated Rule-making Process in New York-Lessons Learned and 



STATE REG-NEG 371 



a View to the Future, NY State Forum on Conflict & Consensus 
Newsletter, vol. 1, no. 2, p. 1, Government Law Center, Albany 
Law School, 1994) and a rule on notification requirements for the 
application of pesticides (see Lobel, Negotiated Rulemaking in New 
York, Part II, NY State Forum on Conflict & Consensus 
Newsletter, vol. 2, no. 1, p. 1, Government Law Center, Albany 
Law School, 1995). An earlier experience involved negotiation of 
regulations to control oil and gas wells in an area of western New 
York. (See Vessels, Negotiated Rulemaking: A New York Success 
Story, Negotiation Journal, vol. 3, no. 1, p. 53, January 1987.) 

• In Massachusetts, a negotiated rulemaking process was used to 
draft regulations on access to marine facilities by disabled persons. 
(See S. R. Brown, "Reg Neg" resolves disability access to marine 
facilities. Consensus (no. 16), p. 1, Public Disputes Network, 
Harvard Program on Negotiation, October 1992.) 

• The governors of eight states bordering the Great Lakes 
cooperated to initiate a negotiation process for standards and 
procedures to limit discharges into the lakes. (See J. B. Litwak, 
"Reg neg" part of Great Lakes clean up. Consensus (no. 15), p. 1, 
Public Disputes Network, Harvard Program on Negotiation, July 
1992.) 

• Arizona used negotiated rulemaking to increase public 
participation in development of new regulations establishing 
groundwater standards. (See Short-Form Reg-Neg Used by Arizona, 
2 BNA ADR Report 71, March 3, 1988.) 

• The Colorado Public Utilities Commission worked with 
interested parties to develop a rule for resource planning. (See 
NIDR Dispute Resolution Forum, January 1986.) 

• New Mexico used reg-neg to help develop rules governing 
underground petroleum storage tanks. (See New Mexico Is 
Negotiating Rule on Underground Storage Tanks, 1 BNA ADR 
Report 260, October 29, 1987; New Mexico Storage Tanks, NIDR 
Dispute Resolution Forum, December 1987; Negotiated Rulemaking 
on New Mexico's Underground Storage Tank Regulations, Resolve 
(no. 21), p. 14, Conservation Foundation, 1989.) 

• Two reg-negs were initiated in Virginia following "policy 
dialogues" with various state agencies on the development of 
groundwater strategies. One involved rules concerning well-drilling 
standards and, more recently, another involved broad groundwater 
standards. Each was organized by the Institute of Environmental 



372 STATE REG-NEG 



Negotiation of Charlottesville. (See Interagency Policy Dialogue 
and Regulatory Negotiation Completed on Virginia's Groundwater 
Management Strategy, Resolve (no. 20), p. 18, Conservation 
Foundation, 1988.) 

• In Washington, an agreement was negotiated on the regulation of 
timber, fish, and wildlife. The agreement led to adoption of rule 
changes by the state's Department of Natural Resources. The 
negotiations were facilitated by the Northwest Renewable Resources 
Center. (See Timber /Fish fWildlife Agreement Reached in 
Washington State, Resolve (no. 20), p. 15, Conservation 
Foundation, 1988.) Rules have also been negotiated to regulate the 
containment of pesticides and fertilizers. (See above for 
Washington's reg-neg legislation. See also Washington State Office 
of Financial Management, A Guide to Public Involvement in Rule 
Making, February 1995.) 

• A new water antidegradation policy for the state of Idaho was 
negotiated by representatives of industry and conservation interests. 
The Northwest Renewable Resources Center acted as mediator. 
(See Idaho Water Antidegradation Successfully Mediated, 4 
Northwest Renewable Resources Center Newsletter (no. 2), p. 1, 
Winter 1988; Antidegradation Water Policy Mediated in Idaho, 
Resolve (no. 21), p. 13, Conservation Foundation, 1989.) 



Examples of Policy Dialogues and Other Consensus-Building 
Efforts 

• The National Council of State Dispute Resolution Programs was 
formed in September 1992 to promote communication and 
collaboration among governmental dispute resolution offices. The 
organization works to develop quality dispute resolution practices 
and to encourage the growth of new statewide offices of dispute 
resolution. (See C. Rule and W. S. Lee, State public policy dispute 
resolution programs discuss expansion. Consensus (no. 23), p. 2, 
Public Disputes Network, Harvard Program on Negotiation, July 
1994.) 

• The North Dakota Consensus Council has been successful in 
bringing leaders and other citizens together to build consensus in 
public education, local government, and the state judicial system. 
(See Forging public policy consensus on the prairie. Consensus (no. 
17), p. 5, Public Disputes Network, Harvard Program on 
Negotiation, January 1993.) 



STATE REG-NEG 373 



• A Minnesota proceeding on the future of residential mental health 
facilities, with a view toward eventually phasing them out, involves 
the development of consensus agreements on the language of 
regulations or legislation. This procedure goes beyond policy 
making to involve both statutory changes and a budget proposal. 

• The New Mexico Public Utility Commission brought together 
representatives of affected interests when it wanted to draft a plan to 
moderate the effect of sudden shocks in electric utility rates in 
response to the establishment of a new nuclear generating plant in 
that state. 

• Administrators of a federally sponsored estuary research project 
asked users of Narragansett Bay, Rhode Island, to define and rank 
goals for the future of the bay. A report on goals was based on 
negotiations of 61 individuals who represented such diverse 
interests as commercial fishing and boating, recreation, 
environment, industry, regulatory agencies, the scientific 
community, and the public. (See Goals for Narragansett Bay, 1 
BNA ADR Report 142, July 23, 1987.) 

• The Tennessee Governor's Safe Growth Team, in developing a 
groundwater management strategy, asked the Conservation 
Foundation in 1986 to convene and facilitate a state-level policy 
dialogue. Participants included state agency staff, local 
governments, private industry, and environmental and public 
interest groups. (See Tennessee Groundwater Policy Dialogue Is 
Completed, Resolve (no. 19), p. 16, Conservation Foundation, 
1988.) 

• Policy dialogues have been used in Virginia to address hospital 
waste disposal standards and policy on low-level radioactive waste. 
(See Resolve (no. 19), pp. 17, 18, Conservation Foundation, 1988.) 

• In Hawaii, representatives of various interests were brought 
together to negotiate a state water code. The agreement reached by 
the "Water Code Roundtable" led to adoption of state legislation 
and the establishment of an independent state water agency. (See A 
Pacific paradise settles a hellish dispute over a scarce resource. 
Consensus (no. 1), p. 1, Public Disputes Network, Harvard 
Program on Negotiation, November 1988.) 

• As of mid-1995, state offices of dispute resolution have been 
established in at least the following states: Alabama, California, 
Florida, Hawaii, Maine, Massachusetts, Minnesota, Montana, 
Nebraska, New Hampshire, New Jersey, New York, North Dakota, 
Ohio, Oregon, Texas, Vermont, Washington, and Wisconsin. 



374 STATE REG-NEG 



Several of these offices offer assistance in the resolution of 
regulatory and public policy disputes through consensus building 
approaches. (See, e.g., summaries of state office activities reported 
in NIDR News, vol. 2, Jan. /Feb. and March/April 1995 issues.) 




CHAPTER 10 - FEDERAL AGENCY EXPERIENCE WITH 
NEGOTIATED RULEMAKING 



The federal departments and agencies that have undertaken negotiated rulemaking 
are listed in alphabetical order. The negotiated rulemaking within the agency is 
identified according to the subject matter and is listed in chronological order of the use 
of the procedure. The table lists significant notices published through May 199S. 

Department of Agriculture 

Department of Education 

Department of Energy (Federal Energy 

Regulatory Commission)* 
Department of Health and Human Services 
Department of Housing and Urban Development 
Department of the Interior 
Department of Labor 
Department of Transportation 
Environmental Protection Agency 
Farm Credit Administration 
Federal Communications Commission 
Federal Trade Commission 
Interstate Commerce Commission 
Nuclear Regulatory Commission 



Department of Agriculture - Animal and Plant Health Inspection Service 

Interstate Spread of Varroa Mites 

In April 1988, the Department of Agriculture's Animal and Plant Health 
Inspection Service (APHIS) published an interim rule designed to prevent the interstate 
spread of Varroa mites, a parasite of honeybees. The rule was rescinded within one 
month because of substantial adverse comment. In November 1988, APHIS convened 
a committee to negotiate the terms of a new regulation. The committee included 
representatives of beekeepers, fruit growers, other related industry groups, and state 
and federal agencies. Two negotiation sessions were held in November-December 
1988 and January 1989. In March 1989, the Department published a proposed rule 
based on the committee's consensus. However, after receiving public comments, the 
Department decided one month later to withdraw the proposed rule and "defer to the 
efforts of research, state government, and the beekeeping community itself." 

Convenor : Deborah S. Dalton (EPA), (202) 382-5495. Facilitators : Louis Manchise 
(FMCS), (513) 684-2951; Deborah S. Dalton; and Emmett P. De Deyn (FMCS), 
(202) 653-5232. 

Affirmation of Interim Rule, 53 Fed. Reg. 35425 (September 14, 1988) 

Notice of Intent to Establish Committee, 53 Fed. Reg. 45134 (November 8, 
1988) 



* The Federal Energy Regulatory Commission published a notice of intent to use negotiated 
rulemaking, but subsequently announced its decision not to go forward. 



375 



376 TABLE OF AGENCY EXPERIENCE 



Notice of Meeting, 53 Fed. Reg. 45484 (November 10, 1988) 

Notice of Meeting, 53 Fed. Reg. 50972 (December 19, 1988) 

Notice of Proposed Rulemaking, 54 Fed. Reg. 10992 (March 16, 1989) 

Withdrawal of Proposed Rule, 54 Fed. Reg. 15217 (April 17, 1989) 

Control of Scrapie 

On February 26, 1990, APHIS announced its intent to establish an advisory 
committee to develop a proposed rule containing alternatives to the existing regulatory 
program for the control of scrapie, a disease of sheep and goats. The negotiating 
committee met eight times between May 1990 and January 1991, and reached 
consensus on the content and requirements of a program to reduce scrapie and control 
its spread. A proposed rule was published in July 1991, and a final rule in July 1992. 
At the same time, APHIS also proposed modification of its scrapie indemnification 
program for destruction of affected animals. 

Convenor : Howard S. Bellman. 

Notice of intent to establish advisory committee, 55 Fed. Reg. 6662 (February 
26, 1990) 

Notice of proposed rule, 56 Fed. Reg. 32342 (July 16, 1991) 

Final rule, 57 Fed. Reg. 33625 (July 30, 1992) 

Proposed rule, 57 Fed. Reg. 33656 (July 30, 1992) 



Marine Mammals 

On May 22, 1995, the Department of Agriculture announced its intent to establish 
an advisory committee to negotiate revisions to the regulations governing the handling, 
care, treatment, and transport of marine mammals in captivity. 

Notice of intent to establish advisory committee, 60 Fed. Reg. 27049 (May 22, 
1995) 



Department of Education 

Financial Assistance to Meet Special Educational Needs of Children 

The Hawkins-Stafford Elementary and Secondary School Improvement 
Amendments of 1988 (Pub. L. 100-297) was enacted on April 28, 1988. Chapter 1 
addresses financial assistance to meet special educational needs of children. The 
Secretary of Education is authorized to issue regulations to ensure compliance with the 
requirements of the chapter. The new section 1431 (of the amended Elementary and 
Secondary Education Act of 1965) requires that such regulations must be developed in 
part through a "modified negotiated rulemaking process as a demonstration of such 
process." The negotiated rulemaking must be conducted so as to allow issuance of the 
final rules within 240 days from enactment (i.e., by December 24, 1988). 

Section 1431 specifies: 

The modified process shall waive application of the Federal Advisory 
Committee Act, but shall otherwise follow the guidance provided in [sic] the 



TABLE OF AGENCY EXPERIENCE 377 



Administrative Conference of the United States in Recommendation 82-4 . . . 
and any successor regulation [sic]. 

The regulations are to result from a "three-step process" involving a series of 
regional meetings, followed by the reg-neg "on a minimum of 4 key issues," followed 
by the normal federal regulatory review and notice and comment procedures. The 
conference committee report states that the conferees will look at this process to see 
whether it produces regulations that are more clearly understood and widely supported 
than prior regulations. 

The Department convened five regional meetings in May and June 1988 to discuss 
six main issues. The Department then prepared draft regulations on these issues, 
which served as the basis for a single negotiation session held on July 19-20, 1988. A 
notice of proposed rulemaking was published on October 21, 1988, reflecting the 
results of the negotiations. The final regulations were published on May 19, 1989. 

Convenor : Mary Jean LeTendre, Director, Compensatory Education Programs, 
Department of Education (202) 732-4682. Facilitators : Daniel P. Dozier [then 
Legal Counsel, Federal Mediation and Conciliation Service]; Louis Manchise 
(FMCS), (513) 684-2951; Deborah S. Dalton (EPA), (202) 382-5495; and Chris 
Kirtz (EPA), (202) 382-7565. 

Notice of Meeting to Conduct a Modified Negotiated Rulemaking Process, 53 
Fed. Reg. 26214 (July 11, 1988) 

Notice of Proposed Rulemaking, 53 Fed. Reg. 41466 (October 21, 1988) 

Final Regulations, 54 Fed. Reg. 21752 (May 19, 1989) 



Carl D» Perkins Vocational and Applied Technology Act 

The Carl D. Perkins Vocational and Applied Technology Education Act 
Amendments of 1990 (Public Law 101-392, 104 Stat. 753, §504) required the 
development and issuance of regulations through a process involving a series of 
regional meetings followed by negotiated rulemaking. Negotiations took place in a 
two-day session in December 1990. Final regulations were published in August 1992. 

Facilitators : John Wagner, Peter Swanson, and Lynn Sylvester, Federal Mediation and 
Conciliation Service. 

Notice of Proposed Rule, 56 Fed. Reg. 51448 (October 11, 1991) 

Notice of meeting to conduct a negotiated rulemaking session, 55 Fed. Reg. 51304 
(December 13, 1991). 

Final regulations, 57 Fed. Reg. 36720 (August 14, 1992) 



Higher Education Amendments of 1992 

For the third time, legislation was enacted requiring the Department of Education 
to use a procedure combining a series of regional meetings with a subsequent 
negotiated rulemaking. (Higher Education Amendments of 1992, Public Law 102-325, 
106 Stat. 448, §497.) Four regional meetings were held in September 1992. 
Negotiations were begun in January 1993 by several committees, formed to address 
separate parts of the law. 

Facilitators : Philip J. Harter, Howard S. Bellman, and Alana Knaster. 

Notice of regional meetings, 57 Fed. Reg. 38639 (August 26, 1992) 



378 TABLE OF AGENCY EXPERIENCE 



Notice of proposed information collection requests, 57 Fed. Reg. 42986 
(September 17, 1992) 

Notice of meetings to conduct negotiated rulemakings, 57 Fed. Reg. 62533 
(December 31, 1992) 

Notice of additional meetings, 58 Fed. Reg. 25590 (April 27, 1993) 

Notice of meeting to continue reg-neg, 58 Fed. Reg. 43608 (August 17, 1993) 

Final rules, 59 Fed. Reg. 22062 (April 28, 1994), 59 Fed. Reg. 22250, 22348 
(April 29, 1994), plus several additional Fed. Reg. notices. 



Direct Student Loan Regulations 

On December 28, 1993, the Department of Education announced its intent to 
establish an advisory committee to develop proposed rules concerning direct student 
loans. The rules would implement in part the Student Loan Reform Act of 1993, part 
of the Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66. The 
negotiating committee met from January through July 1994. The Department reported 
that consensus was not attained on the entire notice of proposed rulemaking, but 
substantive agreement was reached on most of the issues the regulations addressed. 
The Department proposed a rule for the Federal Direct Student Loan Program based on 
the negotiated rulemaking. 

Facilitators : Howard Bellman; Douglas Brookman, Brookman-King. 

Notice of intent to establish advisory committee, 58 Fed. Reg. 68619 (December 
28, 1993) 

Notice of first meeting of the Direct Student Loan Regulations Negotiated 
Rulemaking Advisory Committee, 59 Fed. Reg. 2363 (January 14, 1994) 

Notice of proposed rule, 59 Fed. Reg. 42646 (August 18, 1994) 

Final rule, 59 Fed. Reg. 61664 (December 1, 1994) 



Guaranty Agency Reserves Regulations 

On December 28, 1993, the Department of Education announced its intent to 
establish an advisory committee to develop a proposed rule concerning guaranty agency 
reserves regulations. The rules would implement in part the Student Loan Reform Act 
of 1993, part of the Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66. 
The committee met from January through June 1993, reaching consensus on a 
proposed rule. 

Facilitators : Howard Bellman; Douglas Brookman, Brookman-King. 

Notice of intent to establish advisory committee, 58 Fed. Reg. 68619 (December 
28, 1993) 

Notice of first meeting of the Guaranty Agency Reserves Negotiated Rulemaking 
Advisory Committee, 59 Fed. Reg. 2787 (January 19, 1994) 

Notice of proposed rule, 59 Fed. Reg. 41184 (August 10, 1994) 

Final rule, 59 Fed. Reg. 60688 (November 25, 1994) 



TABLE OF AGENCY EXPERIENCE 379 



Helping Dis advantaged Students Meet High Standards 

On October 28, 1994, the Department of Education requested advice and 
recommendations on regulatory issues under Title I programs. Following receipt of 
responses, the Secretary submitted policy options on two key issues to a negotiated 
rulemaking process in accordance with section 1601(b) of Title I. Two negotiation 
sessions were held in January 1995. Consensus was reached on a majority of the 
issues. 

Request for advice and recommendations, 59 Fed. Reg. 54372 (October 28, 
1994) 

Notice of proposed rule, 60 Fed. Reg. 21400 (May 1, 1995) 



Borrower Defenses Regulations 

The Department of Education's Borrower Defenses Regulations Negotiated 
Rulemaking Committee was formed to negotiate regulations on which acts or omissions 
of an institution of higher education a borrower may assert as a defense to repayment 
of a loan under various loan programs, and the consequences of such defenses. 

Notice of intent to establish committee, 60 Fed. Reg. 1 1004 (February 28, 1995) 

Notice of meeting, 60 Fed. Reg. 15737 (March 27, 1995) 



Department of Energy - Federal Energy Regulatory Commission 

Ex Parte Regulations 

In a notice of final rule of regulations governing submittal of proposed 
hydropower license conditions and other matters (56 Fed. Reg. 23108, May 20, 1991) 
the Commission stated that it had recently begun a comprehensive review of its ex 
parte regulations and that it hoped to revise the rules through negotiated rulemaking by 
the end of 1991. On December 19, 1991, FERC published a notice of intent to 
establish a negotiated rulemaking procedure. After receiving the comments and 
applications for membership on the committee, the Commission decided not to proceed 
with the negotiated rulemaking committee. 

Notice of intent to establish a negotiated rulemaking committee, 56 Fed. Reg. 
65863 (December 19, 1991) 

Notice of decision not to establish a negotiated rulemaking committee, 57 Fed. 
Reg. 10621 (March 27, 1992) 



Department of Health and Human Services — Health Care Financing 
Administration 

Revision of Wage Index for Medicare Reimbursement 

In the first negotiated rulemaking by the Department of Health and Human 
Services, a negotiating committee reached consensus on the wage index used to adjust 
payment rates for hospice services under the Medicare program. 

Convenor/Facil itator : Judy Ballard, Departmental Appeals Board, HHS. 



380 TABLE OF AGENCY EXPERIENCE 



Notice of intent to establish advisory committee, 59 Fed. Reg. 52129 (October 
14, 1994) 

Notice of establishment of advisory committee, 59 Fed. Reg. 67264 (December 
29, 1994) 



Department of Health and Human Services - Indian Health Service (with 
Bureau of Indian Affairs) 

Indian Self-Determination 

The Department of the Interior and the Department of Health and Human Services 
jointly established an advisory committee to negotiate regulations under the process 
required by the Indian Self-Determination Contract Reform Act of 1994, Pub. L. No. 
103-413, Title I. 

Facilitators : Jan Sunoo, Beverly Reinhart, and Peter Swanson, Federal Mediation and 
Conciliation Service. 

Notice of intent to establish advisory committee, 59 Fed. Reg. 67592 (December 
29, 1994) 

Notice of Meeting, 60 Fed. Reg. 14582 (March 17, 1995) 



Department of Housing and Urban Development 
Operating Subsidies for Vacant Public Housing Units 

The Department of Housing and Urban Development's first negotiated rulemaking | 
addressed changes in the method of determining payment of operating subsidies for 
vacant public housing units. The Housing and Community Development Act of 1992, 
Pub. L. No. 102-550, §1 14(b) specified using reg-neg for this purpose. The i 
committee reached consensus on a proposed rule. ! 

Convenors/Facilitators : Ira Lobel and Thomas Putnam, Federal Mediation and 
Conciliation Service 

Notice of intent to establish advisory committee, 60 Fed. Reg. 304 (January 3, 
1995) 

Notice of establishment of advisory committee, 60 Fed. Reg. 10339 (February j 
24, 1995) ! 



Department of the Interior - Bureau of Indian Affairs (with Indian Health 
Service) 

Indian Self-Determination 

The Department of the Interior and the Department of Health and Human Services 
jointly established an advisory committee to negotiate regulations under the process 
required by the Indian Self-Determination Contract Reform Act of 1994, Pub. L. No. 
103-413, Title I. 

Facilitators : Jan Sunoo, Beverly Reinhart, and Peter Swanson, Federal Mediation and 
Conciliation Service. 



TABLE OF AGENCY EXPERIENCE 381 



Notice of intent to establish advisory committee, 59 Fed. Reg. 67592 (December 
29, 1994) 

Notice of Meeting, 60 Fed. Reg. 14582 (March 17, 1995) 

Department of the Interior - Minerals Management Service 
Air Quality Regulations for the California Outer Continental Shelf 

The Minerals Management Service of the Department of the Interior formed a 
committee to discuss proposed air quality regulations for oil and gas exploration, 
production, and development for the outer continental shelf off the coast of California. 
This process was initiated as part of the settlement discussions in the litigation 
challenging the Department's regulations. Negotiations began in September 1986 and 
continued through 1988. In January 1989, the Department published a notice of 
proposed rulemaking in which it stated that the negotiations had served as many of the 
intended purposes as possible, and that it was time to broaden the public dialogue. 
The Department noted that, although the negotiations had not produced a consensus, 
much was accomplished during the two years of discussions. 

Convenors : Alana Knaster and Gerald W. Cormick, The Mediation Institute. 
Facilitators : Philip J. Harter, Alana Knaster, and Gerald W. Cormick. 

Advance Notice of Proposed Rulemaking, 50 Fed. Reg. 838 (January 7, 1985) 

Notice of Proposed Rulemaking, 54 Fed. Reg. 1846 (January 17, 1989) 

Notice of Proposed Technical Determinations, 54 Fed. Reg. 1870 (January 17, 
1989) 



Federal Gas Valuation 

The Minerals Management Service formed a committee to negotiate regulations 
for federal gas valuation under the Oil and Gas Royalty Management Act of 1982. 

Notice of establishment of advisory committee, 59 Fed. Reg. 32943 (June 27, 
1994) 



Gas Valuation on Indian Lands 

The Department of the Interior established a committee to negotiate a proposed 
rule concerning gas valuation on Indian lands, pursuant to the Federal Oil and Gas 
Royalty Management Act of 1982. 

Notice of establishment of advisory committee, 60 Fed. Reg. 7152 (February 7, 
1995) 



Department of the Interior - Bureau of Land Management 
Paleontology; Fossil Collection on Federal Lands 

On August 17, 1982, the Bureau of Land Management published a proposed 
rulemaking on the collection of geological and hobby materials on public lands. Due 
to the concerns expressed in a great number of comment letters, the Bureau deferred 




IS 



382 TABLE OF AGENCY EXPERIENCE 



action on a final rulemaking until the issues could be discussed further. In 1989, the 
Bureau decided to use negotiated rulemaking. Negotiations were completed early in 
1990. 

Convenors/Facilitators : Christopher Moore and Mary Margaret Golten, CDR 
Associates. 

Notice of a negotiated rulemaking, 54 Fed. Reg. 48647 (November 29, 1989) 



Department of the Interior - Office of Self-Governance 
Tribal Self-Governance 

The Department of the Interior established a committee to negotiate and develop a 
proposed rule implementing the Tribal Self-Governance Act of 1994, Public Law 103- 
413, Title II, under the process required by §407 of that Act. 

Notice of intent to establish a committee, 60 Fed. Reg. 8806 (February 15, 1995) 

Departmen t of the Inter ior - Office of Surface Mining Recl amation and 
Enforcement 

Coal Refuse Disposal 

The Secretary of the Interior established a committee to provide a forum to discuss 
a variety of regulatory and reclamation issues of concern to the public. 

Notice establishing committee, 60 Fed. Reg. 13858 (March 14, 1995) 



Department of Labor - Occupational Safety and Health Administration 
Occupational Exposure to Benzene 

Negotiations on a proposed standard for worker exposure to benzene took place 
from mid-1983 until reaching an impasse in late summer 1984. The negotiations did 
not result directly in a draft rule, but did serve to narrow the issues in a useful manner. 

Convenors/Mediators : Gerald W. Cormick and Philip J. Harter. 

Request for Information and Regulatory Schedule, 48 Fed. Reg. 31412 (July 8, 
1983). 

Proposed Rule and Notice of Hearing, 50 Fed. Reg. 50512 (December 10, 1985) 

IP Final Rule, 52 Fed. Reg. 34460 (September 11, 1987) 



Occupational Exposure to 4.4'-MethYlenedianiline flVIDA) 

OSHA convened in July 1986 a committee to negotiate a proposed rule on worker 
exposure to MDA, an animal carcinogen used in the manufacture of plastics. The 
committee submitted a set of recommendations that were published by the agency in 
July 1987. The agency drafted a proposed rule based on these recommendations, 
which was submitted to the Office of Management and Budget for review prior to 
publication. OSHA published the proposed rule in May 1989. The final rule was 
published on August 10, 1992. 



TABLE OF AGENCY EXPERIENCE 383 



Mediator : James R. Williams, Federal Mediation and Conciliation Service. 

Notice of Intent to Form Negotiated Rulemaking Advisory Committee to Develop 
a Proposed Rule: Request for Representation, 50 Fed. Reg. 42789 (October 
22, 1985) 

Press Release, USDL 85-450 (October 22, 1985) 

Extension of Time for Comments and Requests for Membership on Negotiating 
Committee, 50 Fed. Reg. 48655 (November 26, 1985) 

Press Release, USDL 86-245 (June 10, 1986) 

Appointment of Members to the MDA Negotiated Rulemaking Advisory 
Committee and Notice of Meeting, 51 Fed. Reg. 24452 (July 3, 1986) 

Publication of Advisory Conmiittee Recommendations, 52 Fed. Reg. 26776 (July 
16, 1987) 

Notice of Proposed Rulemaking, 54 Fed. Reg. 20672 (May 12, 1989) 

Final rule, 57 Fed. Reg. 35630 (August 10, 1992) 



Safety Standards for Erection of Steel Structures 

In December 1992, OSHA announced its intention to undertake negotiated 
rulemaking to consider revising the safety requirements for workers engaged in the 
erection of structures made of steel and possibly other materials. The committee was 
formed early in 1994. The steel erection reg-neg is the first to make use of an 
electronic bulletin board for communications among committee members and between 
the committee and the general public. 

Convenor/Facilitator : Philip J. Harter. 

Announcement of Intent to Establish Negotiated Rulemaking Committee; Request 
for Representation, 57 Fed. Reg. 61860 (December 29, 1992) 

Notice of establishment of Negotiated Rulemaking Committee, 59 Fed. Reg. 
24389 (May 11, 1994) 

Notice of public meeting; appointment of members to advisory committee; and 
organizational meeting of advisory committee, 59 Fed. Reg. 25848, 26153 
(May 18 & 19, 1994) 

Notice of meeting and agenda, 59 Fed. Reg. 32943 (June 27, 1994) 

Notice of meetings and agendas, 59 Fed. Reg. 37951 (July 26, 1994) 



Department of Transportation - Federal Aviation Administration 

Flight Time Limitations and Rest Requirements for Flight Crewmembers in Air 
Transportation 

The first agency to start, and to complete, a negotiated rulemaking proceeding was 
the FA A. A committee was convened to negotiate a revision of flight and rest time 
requirements for domestic airline pilots. The existing rules had been in effect for 
approximately 30 years and were substantially outmoded, causing FAA to issue more 
than 1000 pages of interpretations. On several previous occasions, the agency had 
made proposals for revising the rules, but withdrew them because of substantial 



384 TABLJi Ut AIjI^INCY iLXftLKlt^ry^t^ 



opposition. Representatives of airlines, pilot organizations, public interest groups, and 
other interested parties met from June 29 to September 26, 1983, with an additional 
meeting on February 14, 1984, to discuss the proposed rule, and a meeting on 
September 11, 1984, after the public comment period on the proposed rule. FAA 
published a notice of proposed rulemaking based on the negotiations in March 1984 
and a final rule in July 1985, effective October 1, 1985. 

Convenor/Mediator : Nicholas A. Fidandis [then Director, Mediation Services, Federal 
Mediation and Conciliation Service]. 

Press Release (FAA 13-83), March 24, 1983 

Notice of Intent to Form Advisory Conunittee for Regulatory Negotiation, 48 
Fed. Reg. 21339 (May 12, 1983) 

Notice of Establishment of Advisory Committee for Regulatory Negotiation and 
Notice of First Meeting, 48 Fed. Reg. 29771 (June 28, 1983) 

Notice of Proposed Rulemaking, 49 Fed. Reg. 12136 (March 28, 1984) 

Press Release (FAA 46-84), (March 29, 1984) 

Final Rule, 50 Fed. Reg. 29306 (July 18, 1985); effective October 1, 1985 

Press Release (FAA 31-85), (July 24, 1985) 



Department of Transportation - Office of the Secretary 
Nondiscrimination on the Basis of Handicap in Air Travel 

The Department of Transportation convened an advisory committee to negotiate a 
proposed rule concerning nondiscrimination on the basis of handicap in air travel, 
implementing the Air Carrier Access Act of 1986. In June 1988, DOT published a 
notice of proposed rulemaking based largely upon the results of the negotiations. 
According to the NPRM, the committee met from June to November 1987, tentatively 
agreeing on a substantial number of issues and producing proposed consensus 
recommendations for regulatory language on those points. However, the negotiations 
were not completed because of an impasse over the issue of exit row restrictions. 
DOT subsequently published a package of five rulemaking documents, including a final 
rule containing general and administrative provisions, plus provisions concerning 
physical facilities and services for passengers with disabilities, and notices seeking 
additional information on certain issues. The rule is based largely on the results of the 
negotiations held in 1987. 

Convenor/Mediator : Eileen Hoffman, Federal Mediation and Conciliation Service. 

Notice of Intent to Form Advisory Committee for Regulatory Negotiation, 52 
Fed. Reg. 5467 (February 23, 1987) 

Notice of Establishment of Advisory Committee for Regulatory Negotiation and 
Notice of First Meeting, 52 Fed. Reg. 19881 (May 28, 1987) 



Notice of Proposed Rulemaking, 53 Fed. Reg. 23574 (June 22, 1988) 

Notice of Extension of Comment Period, 53 1 
1988) 

Final Rule, 55 Fed. Reg. 8008 (March 6, 1990) 



Notice of Extension of Comment Period, 53 Fed. Reg. 36997 (September 23, 
1988) 



lAtSLH. \Jr AKjl^r^K.1 CAX-EiRiiiii'^^i:. 



Supplemental Notice of Proposed Rulemaking, 55 Fed. Reg. 8076 (March 6, 
1990) 

Advance Notice of Proposed Rulemaking, 55 Fed. Reg. 8078 (March 6, 1990) 



Department of Transportation - National Highway Traffic Safety 
Administration; Federal Highway Administration 

Uniform System for Handicapped Parking 

Under Public Law 100-641, the Department of Transportation is required to issue 
regulations that will establish a uniform system for parking by handicapped persons 
and that will encourage adoption of the system by each state. The legislative history 
indicates an expectation that negotiated rulemaking would be used to draft the proposed 
rule. (See 134 Cong. Rec. S 16951, October 20, 1988.) The Federal Highway 
Administration and the National Highway Traffic Safety Administration announced in 
June 1989 their intention to establish a committee for this purpose. The advisory 
committee met for six sessions and on March 23 1990 the FHWA and the NHTSA 
published a Notice of Proposed Rulemaking which adopted the committees 
recommended rule. 

Notice of intent to form advisory committee for regulatory negotiation, 54 Fed. 
Reg. 24908 (June 12, 1989) 

Notice of charter for the committee and membership and first meeting date, 56 
Fed. Reg. 40770 (October 3, 1989). 

Final rule, 56 Fed. Reg. 10329 (March 11, 1991). 



Headlight Aiming 

On June 9, 1995, the National Highway Traffic Safety Administration proposed to 
establish an advisory committee to negotiate recommended specifications for altering 
headlamp beam patterns. 

Facilitator : Lynn Sylvester, Federal Mediation and Conciliation Service 

Notice of intent to establish advisory committee, 60 Fed. Reg. 30506 (June 9, 
1995) 

Notice of establishment of advisory committee, 60 Fed. Reg. 36253 (July 14, 
1995) 



Department of Transportation - Coast Guard 
Oil Spill Vessel Response Plans 

In January 1992, the United States Coast Guard established a committee to 
negotiate a rule on oil spill response plans to implement requirements of the Oil 
Pollution Act of 1990. The Act required a final rule to be issued by August 18, 1992. 
A consensus was reached on various issues in March 1992. A proposed rule on vessel 
response plans was published on June 19, and the committee reconvened in August 
1992 to consider public comments. A second proposed rule based in part on the 
negotiations was published on September 29, addressing discharge removal equipment 
for vessels carrying oil. An interim final rule was published on February 5, 1993. 



I 



386 TABLE OF AGENCY EXPERIENCE 

Convenor/Facilitator : Philip J. Harter. 

Notice of intent to form a negotiated rulemaking committee, 56 Fed. Reg. 58202 
(November 18, 1991) 

Notice of establishment of committee, 57 Fed. Reg. 1139 (January 10, 1992) 

Notice of proposed rulemaking, 57 Fed. Reg. 27514 (June 19, 1992) 

Status of development of response plans, 57 Fed. Reg. 37920 (August 21, 1992) 

Notice of proposed rulemaking, 57 Fed. Reg. 44912 (September 29, 1992) 

Interim final rule, 58 Fed. Reg. 7376 (February 5, 1993) 

Chicago Drawbridge Regulations 

The Coast Guard established an advisory committee to negotiate regulations 
governing the operation of drawbridges over the Chicago River for the passage of 
recreational vessels. 

Facilitator : Howard S. Bellman. 

Notice of intent to form advisory committee, 60 Fed. Reg. 18061 (April 10, 
1995) 

Notice of establishment of committee and first meeting, 60 Fed. Reg. 26710 
(May 18, 1995) 

Department of Transportation - Office of the Secretary 
Transportation for Individuals with Disabilities 

The Department of Transportation, in January 1991, chartered a committee to give 
advice on provisions of proposed and final rules implementing the Americans with 
Disabilities Act of 1990, Pub. L. No. 101-336. The group consisted of representatives 
of the transit industry and disability organizations. While not specifically chartered as 
a negotiated rulemaking committee, the group provided advice and approached an 
informal consensus on several issues. 

Notice of Proposed Rulemaking, 56 Fed. Reg. 13856, (April 4, 1991) 

Final Rule, 56 Fed. Reg. 45584 (September 6, 1991) 

Department of Transportation - Federal Railroad Administration 

Roadway Worker Protection 

On August 17, 1994, the Federal Railroad Administration published a proposal to 
form an advisory committee that would negotiate a rule concerning the protection of 
railroad roadway workers. 

Convenors/Facil itators : Scott Beckenbaugh and Jim Foss, Federal Mediation and 
Conciliation Service. 



TABLE OF AGENCY EXPERIENCE 387 



Notice of Proposal to Form a Negotiated Rulemaking Advisory Committee and 
Request for Representation, 59 Fed. Reg. 42200 (August 17, 1994) 

Notice of establishment and first meeting, 60 Fed. Reg. 1761 (January 5, 1995) 



Environmental Protection Agency 

Establishment of EPA's Regulatory Negotiation Project . 48 Fed. Reg. 7494 (February 
22, 1983). Responses are summarized at 49 Fed. Reg. 17579 (April 24, 1984). 

Candidates for Regulatory Negotiation . 53 Fed. Reg. 51003 (December 19, 1988). 
Thirty day response period extended to ninety days, 54 Fed. Reg. 2226 (January 
19, 1989). 



Nonconformance Penalties under 8206(g) of the Clean Air Act 

Section 206(g) of the Clean Air Act, 42 U.S.C. §7525(g), requires EPA to issue a 
certificate of conformity for any class of heayy-duty yehicles or engines which exceed 
certain emissions standards, but which do not exceed an upper limit associated with 
that standard, provided the manufacturer pays a monetary penalty for nonconformance. 
EPA's negotiated rule implemented this statutory provision by specifying criteria for 
the availability of penalties, the method of establishing upper limits, a testing program, 
and a penalty formula. A rule was successfully negotiated by a committee that met 
from June 14, 1984 to October 12, 1984. 

Convenor/Facilitator : John A. S. McGlennon, ERM-McGlennon Associates, Inc. 

Intent to Form Advisory Committee to Negotiate Nonconformance Penalty 
Regulations, 49 Fed. Reg. 17576 (April 24, 1984) 

Notice of Proposed Rulemaking, 50 Fed. Reg. 9204 (March 6, 1985) 

Final Rule, 50 Fed. Reg. 35374 (August 30, 1985); effective September 30, 
1985 



Emergency Pesticide Exemptions under Section 18 of the Federal Insecticide^ 
Fungicide, and Rodenticide Act 

Section 18 of FIFRA gives the EPA Administrator authority, at his discretion, to 
exempt any federal or state agency from any provision of the Act if he determines that 
emergency conditions exist that warrant an exemption. A rule was successfully 
negotiated that revised the criteria and procedures for emergency exemptions adopted 
in 1973. The negotiating committee met for four mondis starting on September 28, 
1984. 

Convenor : John A. S. McGlennon, ERM-McGlennon Associates, Inc. Facilitator : 
LaJuana Wilcher [then Special Assistant, Office of the General Counsel, EPA]. 

Intent to Form an Advisory Committee, 49 Fed. Reg. 31145 (August 3, 1984) 

Notice of Proposed Rulemaking, 50 Fed. Reg. 13944 (April 8, 1985) 

Final Rule, 51 Fed. Reg. 1896 (January 15, 1986) 



388 TABLE OF AGENCY EXPERIENCE 



Worker Protection Standards for Agricultural Pesticides 

EPA proposed to revise its regulations governing worlcer protection from 
agricultural pesticides. Meetings of a negotiating committee began on November 4, 
1985. In February 1986, members representing farmworkers decided to discontinue 
their participation in the negotiation process. The remainder of the committee 
continued to meet and to work with EPA until June 10, 1986, but in light of the 
absence of one significantly affected interest, a consensus could not be reached. 

EPA subsequently issued a notice of proposed rulemaking, which stated: 
"Although a consensus on this rule was. not achieved. Committee members representing 
the broad interests affected by this proposal discussed issues and regulatory language 
and helped shape the proposed regulation. EPA . . . firmly believes that the 
Committee's deliberations sharpened the issues and will enhance future public 
discussions generated by this proposal." 

Facilitator : Philip J. Harter. 

Intent to Form an Advisory Committee to Negotiate Proposed Farmworker 
Protection Standards for Agricultural Pesticides, 50 Fed. Reg. 38030 
(September 19, 1985) 

Establishment of Committee, 50 Fed. Reg. 42223 (October 18, 1985) 

Notice of Proposed Rulemaking, 53 Fed. Reg. 25970 (July 8, 1988) 



New Source Performance Standards for Woodburning Stoves 

EPA has adopted a rule setting performance standards for residential woodburning 
stoves. The standards implement section 111 of the Clean Air Act. They limit 
emissions of particulate matter from newly manufactured units. 

The rule is based on a consensus reached by a negotiating committee that included 
representatives of the wood heater industry, the environmental community, consumer 
groups, state air pollution control and energy agencies, and EPA. The committee met 
from March 19 to August 21, 1986. 

Conveno r: Philip J. Harter. Facilitators : Philip J. Harter and Allan Hirsch (EPA). 

Advance Notice of Proposed Rulemaking, 50 Fed. Reg. 31504 (August 2, 1985) 

Intent to Form an Advisory Committee to Negotiate New Source Performance 
Standards for Residential Wood Combustion Units, 51 Fed. Reg. 4800 
(February 7, 1986) 

New Source Performance Standards for Residential Wood Combustion Units 
Negotiated Rulemaking Advisory Committee; Establishment and Open 
Meeting, 51 Fed. Reg. 8241 (March 10, 1986) 

Notice of Results of Rulemaking Negotiation, 51 Fed. Reg. 34672 (September 
30, 1986) 

Notice of Proposed Rulemaking and Public Hearing, 52 Fed. Reg. 4994 
(February 18, 1987) 

Final Rule, 53 Fed. Reg. 5860 (February 26, 1988) 



TABLE OF AGENCY EXPERIENCE 389 



Resource Conservation and Recovery Act Permit Modifications 

EPA convened a committee to negotiate modifications to Resource Conservation 
and Recovery Act permits for hazardous waste management. Negotiations toolc place 
from September 10, 1986 to February 24, 1987, with 18 of the 19 negotiators signing 
an agreement in principle that was used as the basis for a proposed rule. 

Facilitators : John A. S. McGlennon and Peter Schneider, ERM-McGlennon 
Associates, Inc. 

Intent to Form an Advisory Committee to Negotiate Regulations Governing Major 
and Minor Modifications of RCRA Permits, 51 Fed. Reg. 25739 (July 16, 
1986) 

Establishment of Committee, 51 Fed. Reg. 30911 (August 29, 1986) 

Notice of Proposed Rulemaking, 52 Fed. Reg. 35838 (September 23, 1987) 

Correction Notice and Extension of Comment Period, 52 Fed. Reg. 44153 
(November 18, 1987) 

Final Rule, 53 Fed. Reg. 37912 (September 28, 1988) 



Underground Injection of Hazardous Wastes 

EPA convened a committee to negotiate a rule that would implement statutory 
prohibitions on the underground injection of hazardous wastes (Hazardous and Solid 
Waste Amendments of 1984). The committee included representatives of industry, 
environmental and public interest groups, state agencies, and EPA. They met for six 
months, beginning on September 16, 1986. 

EPA subsequently published a notice of proposed rulemaking, which stated: 
"Despite substantial agreement on a number of issues and approaches, the group was 
unsuccessful in generating a draft rule which they could all agree should be used as the 
basis of the proposal. Notwithstanding this lack of full consensus, as EPA felt they 
represented the soundest approach, many of the provisions of this proposal reflect the 
thinking of the negotiating Committee; and today's proposal is substantially similar to 
the Committee's last draft in many regards." 

EPA issued a final rule in July 1988. A lawsuit challenging the substance of the 
final rule was filed in the D.C. Circuit by environmental and industry groups. The 
court scheduled oral argument for February 1990. The U.S. Court of Appeals for the 
D.C. Circuit affirmed EPA's rule with no mention of the rulemaking process. Natural 
Resources Defense Council v. EPA, 907 F.2d 1146 (D.C. Cir. 1990). 

Convenor : John A. S. McGlennon, ERM-McGlennon Associates, Inc. Facilitators : 
Philip J. Harter; Gail Bingham, Conservation Foundation (RESOLVE). 

Intent to Form an Advisory Committee to Negotiate Hazardous Waste Injection 
Restrictions Mandated by the Hazardous and Solid Waste Amendments of 
1984, 51 Fed. Reg. 25401 (July 14, 1986) 

Establishment of Committee, 51 Fed. Reg. 30911 (August 29, 1986) 

Notice of Proposed Rulemaking, 52 Fed. Reg. 32446 (August 27, 1987) 

Final Rule, 53 Fed. Reg. 281 18 (July 26, 1988) 



390 TABLE OF AGENCY EXPERIENCE 



Asbestos-Containing Materials in Schools 

EPA was required under the Asbestos Hazard Emergency Response Act of 1986, 
Pub. L. No. 99-519, to issue a final rule by October 17, 1987, on inspection and 
abatement of asbestos-containing materials in school buildings. 

An advisory committee was formed to negotiate a proposed rule within a period of 
a few months. Meetings ran from January 23 to April 3, 1987. Twenty of the 24 
interests represented on the committee ultimately signed a set of statements supporting 
the use of agreed-on portions of proposed regulatory language. EPA then published a 
proposed rule based on the negotiations, and on October 30, 1987, published a fmal 
rule, to be effective December 14, 1987. 

The final rule was the first reg-neg rule to be challenged in court. The suit was 
brought by the Safe Buildings Alliance, a group representing former manufacturers of 
asbestos building products that are now illegal. Plaintiffs in the lawsuit claimed that 
the rule would encourage unnecessary removal of materials from buildings and would 
result in a chaotic situation. They sought a more objective standard - based on air 
monitoring, for example ~ rather than the professional judgment called for under 
EPA's rule. The Safe Buildings Alliance was represented on the negotiating 
committee. Several other parties who were represented on the negotiating committee 
Intervened In support of die final rule as published. These included the National 
Education Association, the American Association of School Administrators, and a 
group of state attorneys general. 

In May 1988, the rule was upheld by the U.S. Court of Appeals for the D.C. 
Circuit, Safe Buildings Alliance v. EPA, 846 F.2d 79 (D.C. CIr. 1988). The court 
determined that EPA's regulation embodied a reasonable interpretation of the 
requirements of the Asbestos Hazard Emergency Response Act of 1986, Pub. L. No. 
99-519, 15 use §§2641-54. Neither the appeal nor the court's decision referred to the 
negotiation procedure that was followed. EPA maintains that the scope of the litigation 
was greatly curtailed in scope as a result of the negotiation process. 

C onvenors : Susan L. Carpenter; Kathy Tyson (EPA). Facilitators : Owen Olpin, 
O'Melveny & Myers; Eileen B. Hoffman, Daniel Dozier, and John Wagner, 
Federal Mediation and Conciliation Service; Leah Haygood, Conservation 
Foundation. 

Consideration of Establishing an Advisory Committee to Negotiate Proposed 
Regulations Implementing the Asbestos Hazard Emergency Response Act of 
1986, 52 Fed. Reg. 1377 (January 13, 1987) 

Notice of Proposed Rulemaking, 52 Fed. Reg. 15820 (April 30, 1987) 

Notice of Public Hearing, 52 Fed. Reg. 29228 (August 6, 1987) 

Final Rule, 52 Fed. Reg. 41826 (October 30, 1987) 



Control of Volatile Organic Chemical Equipment Leaks 

In April 1989, EPA announced that it was considering whether to establish an 
advisory committee to negotiate a new approach for regulation of equipment leaks 
under sections HI and 112 of tiie Clean Air Act. EPA's Federal Register notice 
included a list of key issues and a list of interests and parties identified as possible 
participants. The committee was chartered in September 1989 and met for a period of 
12 months. Consensus was reached in October 1990, and the consensus draft of the 
rule was published in March 1991. 



TABLE OF AGENCY EXPERIENCE 391 



Convenor/Facilitator : Philip J. Harter. 

Intent to Form an Advisory Committee to Negotiate a New Approach for Control 
of Volatile Organic Chemical Equipment Leaks, 54 Fed. Reg. 17944 (April 
25, 1989) 

Notice of agreement on negotiated rule, 56 Fed. Reg. 9315 (March 6, 1991) 

Proposed rule and notice of public hearing, 57 Fed. Reg. 62608 (December 31, 
1992) 



Recycling of Lead Acid Batteries 

Automotive, telecommunications and standby power batteries containing lead are a 
significant source of lead contamination if not disposed of properly. The rule seeks to 
increase the level of those batteries recycled to 100 percent. 

EPA chartered a negotiated rulemaking advisory committee in December 1990, 
composed of representatives of the battery manufacturing, scrs^ collection, and 
recycling industries, primary and secondary lead smelters, battery retailers, 
environmentalists, and state and local governments. The committee met every two 
weeks from January through April 1991. In May, meetings were suspended pending 
EPA development of additional risk and cost information. The agency met with the 
committee in September 1991 after reviewing the risk and cost information, and 
announced that the risk/benefits did not adequately justify the cost of regulating at that 
time under requirements of the Toxic Substances Control Act. The committee has 
been adjourned. 

Convenors/Facilitators ; John A. S. McGlennon and Peter Schneider, ERM-New 
England, Inc. 

Notice of the establishment and open meeting of advisory committee to negotiate a 
rule to regulate the recycling of lead acid batteries, 56 Fed. Reg. 2885 
(January 25, 1991) 



Clean Fuels (Oxygenated and Reformulated Fuels) 

EPA established a committee to negotiate regulations for oxygenated and 
reformulated fuels pursuant to the 1990 amendments to the Clean Air Act. The 
committee had its first meeting on March 13, 1991. The 28 members included 
domestic and imported auto manufacturers, small and large oil companies, the 
environmental farmer and citizens group, gasoline marketers, methanol and ethanol 
producers, state and local air pollution control organizations, and the Department of 
Energy. The committee met in either f\ill session or in four smaller working groups 
almost every two weeks. Agreement was reached and was widely hailed as a 
"milestone in reconciling the automobile with environmental quality through cleaner 
fuels." (Environmental News, August 16, 1991). However, the rules ultimately 
adopted by the Bush and Clinton Administrations differed from the negotiated rule. 
The final rule was rejected in 1995 by the D.C. Circuit, American Petroleum Institute 
V. EPA, 52 F.3d 1113 (D.C. Cir. 1995). 

Convenors/Facil itators : Philip J. Harter; Alana Knaster, The Mediation Institute. 

Notice of intent to form a negotiated rulemaking committee and announcement of 
public meeting, 56 Fed. Reg. 5167 (February 8, 1991) 



392 TABLE OF AGENCY EXPERIENCE 



Notice of establishment of negotiated rulemaking committee 56 Fed. Reg. 10522 
(March 13, 1991) 

Notice of hearing to discuss proposed rules 56 Fed. Reg. 29919 (July 1, 1991) 

Notice of proposed rulemaking, 57 Fed Reg 31176 (July 9, 1991) 

Supplemental notice of proposed guidelines, 57 Fed Reg. 4408 (February 5, 
1992) 

Notice of application for extension of the reformulated gasoline program to New 
Jersey, Delaware and Maryland, 57 Fed. Reg. 11218 (April 1, 1992) 

Supplemental notice of proposed rulemaking, 57 Fed. Reg. 13416 (April 16, 
1992) 

Notice of application for extension of the Reformulated Gasoline Program to the 
District of Columbia, 57 Fed. Reg. 24037, (June 5, 1992) 

Notice of availability of guidance documents, 57 Fed. Reg. 47853 (October 20, 
1992); see also 57 Fed. Reg. 47769, 47849 (October 20, 1992) 

Final rule, 59 Fed. Reg. 7716 (February 16, 1994) 



Underground Injection Control. Class II Wells 

EPA considered establishing a committee to negotiate rules under the Safe 
Drinking Water Act, pertaining to underground injection control associated with oil 
and gas production. The agency subsequently decided not to go forward with 
negotiations, but did form a committee to give advice on options. 

Convenors/Facilitators : Philip J. Harter and John Lingelbach. 

Request for comments, 56 Fed. Reg. 4957 (February 7, 1991) 

Notice of public meeting, 56 Fed. Reg. 14521 (April 10, 1991) 

Establishment of F AC A committee, 56 Fed. Reg. 26672 (June 10, 1991) 

National Emission Standards for Coke Oven Batteries 

The Clean Air Act Amendments of 1990 require EPA to issue national emission 
standards for coke oven batteries by December 31, 1992. Section 112 specifically 
charges EPA with reducing the adverse affects of hazardous air pollutants from new 
and existing sources, among other things. 

After a series of individual and group meetings with interested parties, EPA 
decided to charter an advisory committee that included representatives of 
environmental and public interests, major steel companies, utilities, the relevant coke 
oven batteries, the association of state implementation officials, and union 
representatives. The Clean Air Act Amendments of 1990 required issuance of 
standards by December 31, 1992. The committee conducted its first formal meeting on 
February 5 and 6, 1992, and continued to meet at 3-week intervals, eventually reaching 
consensus on a proposed rule. 

Facilitator : Philip Harter. 

Notice of establishment of advisory committee and notice of open meeting, 57 
Fed. Reg. 1730 (January 15, 1992) 



TABLE OF AGENCY EXPERIENCE 393 



Proposed rule and notice of public hearing, 57 Fed. Reg. 57534 (December 4, 
1992) 

Final rule, 58 Fed. Reg. 57898 (October 27, 1993) 



Hazardous Waste Manifests 

The Resource Conservation and Recovery Act (RCRA) requires EPA to establish 
requirements for a manifest document that will record the movement of hazardous waste 
from its point of origin to its final destination at a treatment, storage or disposal site. EPA 
regulations specify the minimum data needed on the manifest. Since states are allowed to 
request additional data, considerable variation in both manifest formats and procedures has 
developed, making retrieval and dissemination of manifest information difficult. 

The Association of State and Territorial Solid Waste Management Officials 
(ASTSWMO) petitioned EPA in January 1990 to revise and standardize the manifest. In 
July 1992, EPA decided to conduct a regulatory negotiation based on this petition. Parties 
to the negotiation include states, generators, transporters, disposal facilities, unions and 
environmental groups. The committee's organizational meeting took place on July 28, 
1992. The negotiation began in October 1992. EPA's original deadline of April, 1993 
was extended to December 1993. The negotiation ended successfully. 

Convenor/Facil itator : Suzanne Orenstein, RESOLVE (formerly The Conservation 
Foundation). 

Notice of Intent to form a negotiated rulemaking advisory committee under the 
Federal Advisory Committee Act, 57 Fed. Reg. 24765 (June 11, 1992) 

Establishment of Federal Advisory Committee Act committee and meeting 
announcement, 57 Fed. Reg. 54203 (November 17, 1992) 



Disinfectant Byproducts in Drinking Water 

On September 15, 1992, EPA announced its intent to form a committee to 
negotiate a proposed rule on contamination of drinking water by disinfectant 
byproducts. The negotiations led to publication of three proposed rules, which 
addressed information collection, disinfectant byproducts in water, and enhanced 
surface water treatment. 

The Safe Drinking Water Act requires disinfection of tap water to reduce acute health 
risks from microbial contamination. However, in the course of treatment, disinfectant 
byproducts are formed, which are associated with increased risk of cancer and other chronic 
illnesses. EPA's disinfectant byproducts rule will regulate the use of chemicals used to 
purity water and levels of byproducts produced by disinfection. Stakeholders included 
water treatment system representatives, state and local governments, and environmental, 
consumer and public health interest groups. The committee met from November 1992 
through June 1993, reaching essential agreement on the major issues. 

Facilitators : Gail Bingham, RESOLVE (formerly The Conservation Foundation); Eric 
Van Loon, Endispute. 

Notice of intent and announcement of public meeting, 57 Fed. Reg. 42533 
(September 15, 1992) 

Notice of proposed rule, 59 Fed. Reg. 6332 (February 10, 1994) 



394 TABLE OF AGENCY EXPERIENCE 

Notice of proposed rule, 59 Fed. Reg. 38668 (July 29, 1994) 
Notice of proposed rule, 59 Fed. Reg. 38832 (July 29, 1994) 



Architectural and Industrial Maintenance Coatings 

On October 2, 1992, EPA announced establishment of a committee to negotiate a 
rule to control volatile organic chemical emissions from architectural and industrial 
maintenance coatings. Section 183(e) of the Clean Air Act Amendments requires EPA to 
study volatile organic compound (VOC) emissions firom manufacturing of commercial and 
consumer products. Because architectural and industrial maintenance (AIM) coatings, such 
as building and steel structure paints, are estimated by EPA to account for 20% of total 
commercial and consumer product VOC emissions, EPA considers AIM regulation a 
priority. 

Informal data exchange me^ings occurred from February through August 1992. EPA 
chartered the negotiation committee and held the first fomial meeting in October 1992. 
Participants in die negotiations include environmental groups, states, private consumers, 
paint manufacturers, industrial trade associations, USDA, GSA, the Army Corps of 
Engineers, and the Federal Highway Administration. 

Convenors/Facilitators : Barbara Stinson and John Ehrmann, Keystone Center. 

Establishment of Federal Advisory Committee Act committee and meeting 
announcement, 57 Fed. Reg. 45597 (October 2, 1992) 



Wood Furniture Manufacturing Regulations 

EPA established a committee to negotiate a proposed national emission standard 
for air pollutants from wood ftirniture manufacturing operations. Membership includes 
states, representatives from different size and types of furniture manufacturers, 
environmental and public interest groups, and a group committed to pollution prevention. 

Convenors/Facilitators : John Lingelbach and Susan Wildau, CDR Associates. 

Establishment of advisory committee and notice of meeting, 58 Fed. Reg. 34011 
(June 23, 1993) 

Notice of proposed rule, 59 Fed. Reg. 62652 (December 6, 1994) 



Small Nonroad Engine Regulations 

In response to Section 213 of the Clean Air Act, as amended, EPA determined that 
nonroad mobile sources are significant contributors to total ozone precursor and carbon 
monoxide emissions in areas that have failed to attain the National Ambient Air (Quality 
Standards for ozone and CO. The negotiated rulemaking addresses control of emissions 
firam nonroad spark-ignited engines 25 horsepower and below, excluding marine propulsion 
and rcCTeational propulsion engines. The committee was chartered September 30, 1993, 
and will terminate May 31, 1995. The committee consists of representatives of the small 
non-road engine manufacturers, engine servicing dealers. Natural Resources Defense 
C^ouncil, American Lung Association, Northeast States Coordinated Air Use Management, 
State of Wisconsin, and EPA. 



TABLE OF AGENCY EXPERIENCE 395 



Convenors : Howard Bellman and Lucy Moore. Facilitators : Lucy Moore and John 
Folk-Williams, Western Network. 

Notice of intent to establish advisory committee, 58 Fed. Reg. 34389 (June 25, 
1993) 

Establishment of Federal Advisory Committee Act committee and meeting 
announcement, 60 Fed. Reg. 418 (January 4, 1995) 



Farm Credit Administration 

Assessment and Apportionment of Administrative Expenses 

Under the Farm Credit Act of 1971, 12 USC 2001, the Farm Credit 
Administration assesses its administrative expenses on banks, associations, and certain 
related entities in the Farm Credit System. The FCA established a committee in May 
1992 to negotiate proposed amendments to these regulations. Consensus was reached 
by July, and the negotiated formula was included in a prooosed rule adopted by the 
FCA Board in September 1992. The Board adopted a final rule in February 1993, that 
was published in March 1993. 

Convenor : William L. Larsen, Office of the General Counsel, Farm Credit 
Administration. Facilitators : Scott Beckenbaugh and Frances Dunham, Federal 
Mediation and Conciliation Service. 

Notice of intent to establish a negotiated rulemaking committee, 57 Fed. Reg. 
19405 (May 6, 1992) 

Proposed rule, 57 Fed. Reg. 47288 (October 15, 1992) 

Final rule, 58 Fed. Reg. 10939 (February 23, 1993) 



Federal Conununications Commission 

Provision of Non-voice^ Low Earth Orbit Satellite Services. 

The Commission established an advisory committee to negotiate regulations 
defining the technical and service rules appropriate to the provision of data messaging 
and position determination services using low-earth orbit satellites ("little LEO"). The 
negotiations were intended to develop regulations designed to facilitate the shared use 
by the maximum number of service providers in the spectrum. The systems will 
ultimately provide low-cost 2-way data messaging and radiolocation services 
worldwide. A consensus was reached on proposed technical regulations. 

Facilitator : William Luther, Federal Communications Commission. 

Notice of proposed rule and request for comments, 57 Fed. Reg. 18857 (May 1, 
1992) 

Notice of Advisory Committee Establishment, Notice of Advisory Committee 
Meetings, 57 Fed. Reg. 33163 (July 27, 1992) 



396 TABLE OF AGENCY EXPERIENCE 



Mohile Satellite Service in the Frequency Bands Above 1 GHz. 

The Commission established a second advisory committee, which would develop 
proposed technical and spectrum-sharing regulations for licensing a more elaborate 
voice and message communication system ("big LEO"). 

Notice requesting comments on establishing an advisory committee, 57 Fed. Reg. 
39661 (September 1, 1992) 

Notice of advisory committee establishment and meetings, 57 Fed. Reg. 60781 
(December 22, 1992) 



Local Multipoint Distribution Service and Fixed Satellite Service in the 28 GHz 
Band. 

In July 1994, the Commission established an advisory committee to develop 
proposed technical standards for shared use of the 28 GHz band. Negotiations 
concerned sharing spectrum between the Local Multipoint Distribution Service and the 
Fixed Satellite Service. 

Facilitator : William Luther, Federal Communications Commission. 

Request for comments, 59 Fed. Reg. 7961 (February 17, 1994) 

Notice of establishment of committee and meetings, 59 Fed. Reg. 33483 (June 
29, 1994) 



Hearing Aid Compatible Telephones 

The Federal Communications Commission established a committee to negotiate 
regulations that would specify the requirements for hearing aid compatible telephones 
in workplaces, hospitals and certain other health care facilities, prisons, hotels, and 
motels. 

Facilitator : William Luther, FCC 

Notice of intent to establish advisory committee, 59 Fed. Reg. 60343 (November 
23, 1994) 

Notice of advisory committee establishment and meetings, 60 Fed. Reg. 15739 
(March 27, 1995) 



Federal Trade Commission 
Informal Dispute Settlement Procedures 

The Federal Trade Commission convened a committee in September 1986 to 
negotiate revisions to the Commission's rule on informal dispute resolution procedures 
("Rule 703"). The committee included representatives of automobile dealers, 
consumer groups, state officials, and other interest groups. The committee met 
monthly until June 1987, but was unable to reach consensus on a proposed rule. 
Because of continuing interest in the issues concerning Rule 703, the FTC published an 
advance notice of proposed rulemaking in May 1989 to obtain public comment on 
whether the rule should be amended. 



TABLE OF AGENCY EXPERIENCE 397 



Convenor/Faciiitators : John A. S. McGlennon, ERM-New England; Gail Bingham, 
Conservation Foundation (RESOLVE). 

Notice of Intent to Form Advisory Committee for Regulatory Negotiation, 51 
Fed. Reg. 5205 (February 12, 1986) 

Notice of Formation of Advisory Committee and Notice of First Meeting, 51 
Fed. Reg. 29666 (August 20, 1986) 

Final Rule on Advisory Committee Management, 51 Fed. Reg. 30055 (August 22, 
1986) 

Advance Notice of Proposed Rulemaking, 54 Fed. Reg. 21070 (May 16, 1989) 



Interstate Commerce Commission 
Electronic Tariff Filing 

On April 6, 1994, the Interstate Commerce Commission proposed establishing an 
advisory committee to develop a rule concerning electronic tariff filing. In August, the 
ICC announced postponement of further action, to await the outcome of congressional 
deliberations affecting the agency and relevant statutory provisions. 

Notice of proposal to establish a negotiated rulemaking committee, 59 Fed. Reg. 
16164 (April 6, 1994) 

Notice of postponement of action in establishing committee, 59 Fed. Reg. 41428 
(August 12, 1994) 



Nuclear Regulatory Commission 

Submission and Management of Records and Documents Related to the Licensing 
of a Geologic Waste Repository for the Disposal of High-Level Radioactive 
Waste 

NRC formed an advisory committee to negotiate a proposed rule on submission 
and management of documents relating to the licensing of a geologic repository for 
disposal of high-level radioactive waste. Committee meetings were originally planned 
to run from September 1987 through May 1988. However, the composition of the 
negotiating committee was revised early in 1988 to reflect the narrowed focus on a 
single site in Nevada for a geologic repository, as provided in the Nuclear Waste 
Policy Amendments Act of 1987 (Pub. L. 100-203). The committee completed its 
deliberations in July 1988, and in November the Commission published the "final 
negotiating text" as a proposed rule for public comment. This text was based on an 
agreement reached by state, Indian tribe, environmental, local government, and federal 
agency negotiators. The participating industry groups did not support the final 
proposal because of the projected costs of the licensing support system. On April 14, 
1989, the Commission published the final rule, which was approved by a vote of 3 to 
2. 

Convenor/Facilitators : Howard S. Bellman, Timothy J. Mealey, Matthew A. Low, 
and Kirk Balcom, Conservation Foundation. 

News Release (86-174), December 18, 1986 

Notice of Intent to Form an Advisory Committee to Negotiate a Proposed Rule, 
51 Fed. Reg. 45338 (December 18, 1986) 



398 TABLE OF AGENCY EXPERIENCE 



Notice of Establishment of an Advisory Committee to Negotiate a Proposed Rule, 
52 Fed. Reg. 29024 (August 5, 1987) 

Notice of the Change in Composition of the High-Level Waste Licensing Support 
System Advisory Committee, 53 Fed. Reg. 3404 (February 5, 1988) 

Notice of Proposed Rulemaking, 53 Fed. Reg. 44411 (November 3, 1988) 

Final Rule, 54 Fed. Reg. 14925 (April 14, 1989) 



Indemnity Agreements with Radiopharmaceutical Licensees 

The Price-Anderson Amendments Act of 1988 (Pub. L. 100-408) was enacted on 
August 20, 1988. Section 19 provided that the Nuclear Regulatory C!ommission shall 
within 18 months of enactment determine whether to enter into indemnity agreements 
with radiopharmaceutical licensees. This term refers to persons licensed by the 
Conunission or a state for the manufacture, production, possession, or use of 
radioisotopes for medical purposes. The legislation required that, for the purpose of 
making this determination, the NRC must first conduct a "negotiated rulemaking" in 
accordance with guidance provided by the Administrative Conference's 1982 
recommendation. The NRC was required to select a convenor from a roster provided 
by the Administrative Conference. The legislative history made clear, though, that if 
no consensual agreement were reached, the convenor was to transmit his own 
recommendation to the Commission not later than March 20, 1989. In this respect, the 
concept of negotiated rulemaking appearing in the Act differed markedly from the 
procedure discussed throughout the Sourcebook. In addition, the issue to be negotiated 
appears to be a yes-or-no issue on which there may be little room for compromise by 
the parties. 

Negotiating sessions took place from November 1988 to February 1989. On 
March 16, 1989, the convenor submitted to the NRC a recommendation that the 
Commission not extend indenuiity under the Price-Anderson Act to any class of 
radiopharmaceutical licensees. Nevertheless, the convenor's recommendation was 
accompanied by a draft proposed rule, based on agreements among the parties and 
identifying areas of disagreement. The Commission announced in May that it had 
accepted the convenor's recommendation and was terminating the rulemaking. 

Convenor : Howard S. Bellman. 

Notice of Intent to Conduct a Negotiated Rulemaking and Schedule for the 
Proceeding, 53 Fed. Reg. 40233 (October 14, 1988) 

News Release (89-88), NRC Terminates Negotiated Rulemaking on Insurance 
Provisions for Medical Licensees (May 23, 1989) 

Termination of Rulemaking Proceeding, 54 Fed. Reg. 22444 (May 24, 1989) 



CHAPTER 11 - SOURCES OF ASSISTANCE 



The Administrative Conference, in its role as a clearinghouse 
of information about administrative procedures, has endeavored to 
remain abreast of all negotiated rulemaking activity. The Office oi 
the Chairman maintains a large collection of written materials from 
which the appendices of the Sourcebook have been chosen. In 
addition, Conference staff members are conversant with the theory 
and practice of reg-neg. Federal agencies are encouraged to take 
advantage of this resource. 

Specific types of assistance are discussed elsewhere in the 
Sourcebook. See chapter 5 for sources of training assistance. See 
chapter 8 for information about the Administrative Conference's 
roster of neutrals. The table in chapter 10 identifies persons who 
have served as convenors or facilitators in negotiated rulemaking 
proceedings conducted by federal agencies. These individuals may 
in some instances be available as convenors or facilitators. Agency 
personnel who have participated in negotiated rulemaking can also 
be valua